# Employee Termination Checklist > **Disclaimer:** This checklist provides general guidance only and is not legal > advice. Laws vary significantly by jurisdiction. Consult employment counsel before > terminating any employee in a complex situation (protected class, recent complaint, > FMLA/ADA leave, RIF, or senior executive). --- ## Phase 1: Pre-Termination Review (Days Before the Meeting) ### Reason and documentation audit - [ ] Write out the termination reason in one clear sentence - [ ] Confirm the reason is documented in the employee's file (PIPs, written warnings, performance reviews, incident reports) - [ ] Verify the documentation predates the decision to terminate (not created after) - [ ] Confirm that similarly situated employees who engaged in the same conduct were treated consistently - if not, document the distinguishing reason ### Protected class and activity check - [ ] Review employee's protected characteristics (age 40+, pregnancy, disability, recent FMLA/leave, recent accommodation request) - [ ] Review recent activity: Did the employee file an HR complaint, EEOC charge, or wage complaint in the last 6-12 months? - [ ] Review recent protected activity: Did the employee report safety violations, refuse illegal orders, or engage in union activity? - [ ] If any protected class or recent activity is present, involve HR and consider legal review before proceeding ### Legal review triggers (stop and consult counsel if any apply) - [ ] Employee is on FMLA, ADA leave, or has a pending accommodation request - [ ] Employee is pregnant or recently returned from parental leave - [ ] Employee filed an HR or EEOC complaint in the past 12 months - [ ] Termination is part of a reduction in force (RIF) affecting 50+ employees (federal WARN Act may apply; state mini-WARN thresholds are often lower) - [ ] Employee is over 40 and part of a group termination (OWBPA requires additional disclosures in the severance agreement) - [ ] Employee is in California, New York, New Jersey, or another employee-protective state with specific termination notice or final pay requirements - [ ] Employment agreement contains a "for cause" definition or notice period --- ## Phase 2: Logistics and Paperwork Preparation ### Final pay calculation - [ ] Calculate final wages through the last day worked (including any partial day) - [ ] Determine accrued, unused PTO balance - check state law on whether it must be paid out (California, Colorado, and others require payout; some states do not) - [ ] Identify any outstanding expense reimbursements owed to the employee - [ ] Identify any advances, loans, or equipment value the employee owes the company - check state law before making deductions from final pay (many states prohibit deductions without written authorization) - [ ] Confirm the state deadline for final pay: - Involuntary termination: many states require payment immediately or within 24-72 hours - Resignation: typically next regular payday - [ ] Confirm delivery method: direct deposit continuation is acceptable in most states; some require a physical check on the final day ### Separation agreement and severance (if offering) - [ ] Determine severance amount and whether it is required by contract or policy - [ ] Draft the separation agreement using counsel-reviewed template - [ ] Confirm the agreement includes a release of claims appropriate for jurisdiction - [ ] If employee is 40 or older: include ADEA/OWBPA-required disclosures: - 21 days to consider the agreement (45 days for group terminations) - 7-day revocation period after signing - Explicit reference to ADEA rights - [ ] For group terminations: include OWBPA disclosure listing job titles and ages of all employees in the decisional unit who were and were not selected - [ ] Do NOT require the employee to waive EEOC charge-filing rights (only the right to monetary recovery from the company in a charge may be released) ### Required notices - [ ] COBRA election notice (must be sent within 14 days of qualifying event; typically HR or benefits administrator handles this) - [ ] State unemployment insurance notice (many states require an employer-provided form at separation) - [ ] State-specific notices: California requires WARN notices for mass layoffs; New York requires specific separation documents; check your state - [ ] If applicable: WARN Act notice (60 days advance notice required for plant closings or mass layoffs of 50+ employees at a single site) ### System and access revocation plan - [ ] Coordinate with IT for timing of access revocation (ideally during or immediately after the termination meeting) - [ ] Identify systems to revoke: email, Slack, GitHub, cloud consoles, HR systems, payroll, financial systems, customer data systems, VPN - [ ] Recover company property: laptop, phone, badge, keys, credit card - [ ] Confirm the employee's personal files or contacts are handled per company policy (allow retrieval of personal items; preserve business records per litigation hold) - [ ] If the employee has administrative or privileged access: escalate to security team for immediate revocation before or the moment the meeting begins --- ## Phase 3: The Termination Meeting ### Meeting setup - [ ] Schedule the meeting at a private location (not a glass-walled conference room) - [ ] Invite one witness from HR (or a second manager if HR is unavailable) - never conduct the meeting alone - [ ] Choose the timing thoughtfully: avoid Fridays if possible (leaves employee without contact for the weekend); early in the day is often recommended - [ ] Brief the witness on their role: observe and document, not participate in the decision or debate - [ ] Prepare a written script or talking points - not to read verbatim, but to ensure all required points are covered - [ ] Have all paperwork ready before the meeting starts ### During the meeting - [ ] Get to the point quickly - do not open with small talk that raises false hope - [ ] State clearly that the employment is ending: "We have made the decision to end your employment effective [date]" - [ ] Give a brief, honest reason - do not go into extensive detail or invite debate - [ ] Do not apologize excessively or use language that could be construed as admitting wrongdoing ("I know this isn't fair...") - [ ] Provide the separation agreement and notice of the consideration period - do not pressure for immediate signature - [ ] Explain what happens next: final pay, benefits continuation (COBRA), references - [ ] Collect company property (badge, keys, laptop) if feasible at this moment; arrange for retrieval if not - [ ] Treat the employee with respect throughout - how this moment is handled affects culture, employer brand, and litigation risk equally ### After the meeting - [ ] The witness writes a contemporaneous summary of what was said (within the hour) - [ ] Document that the employee was notified of termination, the date, and the reason - [ ] Confirm IT has revoked system access - [ ] Send any required written notices that were not handed in the meeting (COBRA, etc.) --- ## Phase 4: Post-Termination Documentation and Obligations ### Records retention - [ ] Retain the complete personnel file per your jurisdiction's retention schedule - federal law requires 1-3 years depending on document type; many states require longer periods; retain litigation-related records indefinitely until resolution - [ ] If a lawsuit or EEOC charge is anticipated, issue a litigation hold immediately - suspend normal document destruction for all potentially relevant records ### Responding to unemployment claims - [ ] Respond promptly and accurately to state unemployment agency requests - [ ] Provide factual documentation supporting the termination reason - [ ] Do not contest claims reflexively - contesting without good grounds creates ill will and rarely changes the outcome for misconduct-based separations - [ ] Note: receiving unemployment benefits does not prevent the employee from filing discrimination or wrongful termination claims ### References - [ ] Confirm your company's reference policy with HR before any reference requests are received (many companies limit responses to dates of employment and title) - [ ] Ensure all managers know who is authorized to provide references and what can be said - unauthorized positive or negative references both create liability - [ ] Do not say anything as a reference that could be characterized as defamatory or retaliatory ### Severance agreement timing - [ ] Track the consideration period deadline (21 days for individuals; 45 days for group reductions) - [ ] If the employee signs before the deadline, confirm the 7-day revocation period has passed before paying severance - [ ] Do not pay severance during the revocation period --- ## Quick Reference: State Final Pay Deadlines | State | Involuntary Termination | |---|---| | California | Immediately (same day) | | Colorado | Immediately | | Massachusetts | Next business day | | New York | Next regular payday | | Texas | Within 6 days | | Florida | Next regular payday | | Washington | End of pay period | > This table is illustrative only. Verify current law for your specific state and > situation. Many states have exceptions based on method of termination, industry, > or union agreements.