Yes, You Can Fire That Guy!

January 6, 2023

Processes, Procedures, Practices, and Protocols Are Kings

By Tanzania Cannon-Eckerle, Esq.


In this new, enlightened era of increased employee rights and employee shortages, many employers are scared to terminate employees in fear of litigation — or of not having enough staff to enable the company to produce at the desired level.


The second question we can save for later, but I will mention now that additional widgets will most likely never justify the havoc that a toxic employee will create.


In my opinion, the answer to the first question is simple: do not fear what you cannot control. You cannot control who goes down to the courthouse to file a complaint. Just be prepared for the battle.


So, yes, you can fire that guy (or girl, or them). The question is, should you?

 

Don’t Shoot Before Aiming — Consider Your Goal First

Don’t respond emotionally or consider someone else’s emotional response. Stop and think. Ask, why is this employee on the chopping block (i.e., what did they allegedly do)? How did they get there (was the proper process followed)? Who placed them there (who is bringing this up? Does the person have the authority to raise this issue? Anything nefarious here)?


Notice that I did not ask ‘who’ this employee is. We don’t assess the ‘who’ on the chopping block. It doesn’t matter who did it. It matters what was done, why it was done, whether it was actually done, and whether it rises to the level of termination.


Essentially, assess the conduct. What do you hope to attain by terminating this employee? A safer workplace? Good. To stop disruptions in operations or the beginnings of a hostile work environment? Good. Now prove it.

 

Prove It (in Preparation for the Battle)

If you can’t prove it, abort the mission. Go back to the drawing board. Go to plan B. Joking aside, preparing for appropriate employee terminations is a long game. It starts with consistent application of procedures, processes, policies, and practices. Probably the most important thing is documentation.


Consistent application of the ‘four Ps’ over time may take an investment of time and money into creating them if you don’t already have them, and training managers and supervisors in the art of holding employees accountable.


Among other things, there should be consistent application of all conduct and performance-related policies. There should be consistent application of all of the policies, procedures, and practices associated with managing human-resources functions such as leaves of absence and request for accommodations, as well as employee complaints made and investigated.


All of these should contain a component that enables tracking the underlying data and providing the ability to obtain and distribute the underlying information that supports assertions made. So you want to terminate an employee because he has been to work only seven out of 19 days, and on the seventh day he violated a safety policy and then stole your candy bar? You should be able to show documentation of these occurrences that were created in real time — including, of course, when the company had the initial conversation with him for being absent the first few times, checking to make sure it wasn’t actually a protected leave of absence.


Once you have the documentation, sit him down and tell him that he is being terminated from the job because of his inability to perform and because of his violation of the attendance policy. Have a witness. If you don’t have the documentation, sit him down, put him on notice that he is in the line of fire, and start documenting. Provide him with expectations, and then document it thereafter. Most likely, this will just delay the inevitable, but you never know. Regardless, at least you will have something to take with you into battle.


Make the Business Decision Informed by the Data, and Document It

Please know, you can terminate an employee for any reason at any time so long as it is not an illegal reason. That means you cannot terminate because of an employee’s protected status or activity or in a manner inconsistent with a collective bargaining agreement or other employment agreement.

As such, if you want to terminate a person for business reasons that have nothing to do with the person and everything to do with your business needs, that is OK too. But you should prove it. Do you have the data to back up your decision? You don’t have to have it, but if that person files a complaint, you will want it, and you will want to be able to attest that the business analysis was done prior to the termination. Otherwise, they will scream ‘pretext,’ meaning you just made that up. Plus, doing the analysis first may help you assess the risks of terminating an employee for business reasons.


There are always risks. Is it cheaper to keep him after assessing those risks, or not? That is a legitimate fiscal business concern. There are risks associated with not terminating employees as well. Be sure to document those, too — not just in the business case (e.g., budget concerns), but also in the ‘do I have enough to terminate this employee for conduct?’ case. Some examples: if I don’t terminate, there will be allegations that I did not maintain a harassment-free workplace; or, I terminated another employee for this same behavior last year, and there is no legitimate reason distinguishing this employee from being terminated for the same; or, he keeps violating safety procedures, and someone may get hurt.

 

Terminate with Grace and Pay What You Owe

Be respectful to all employees, including those who are coming and going. He knows what he did to get terminated (if you have done it right). There is no legitimate reason to be rude about it.

Terminating with dignity or grace does not mean that you should not terminate an employee. Once an employee gets to termination, he should have already had an opportunity to cure the conduct or behavior for which he is getting terminated. As such, by the time the writing is on the wall, he should not be surprised. If he is, that might partly explain why he is getting terminated.


Next, make sure you reach out to your employment counsel for assistance with properly preparing a termination package (necessary correspondence, pay requirements, and timing considerations). A misstep here can get you in hot water — triple hot water. Failure to pay an employee what is due at termination has no defense, and the remedy to the employee includes three times the wages due. Call your counsel before terminating.


I know this article is not going to make me popular among some folks. I am not trying to be cold. I am just being practical. Your employees are your life force. I get it. I am one. But they are also human capital. If you manage your human capital like you manage your non-human capital, then you should be able to terminate employees without fear.


Processes, procedures, practices, and protocols are kings. Remember, keeping a toxic employee is more costly, in a variety of ways, than the cost of defending a claim — that is, if you have your ducks in a row. So get your ducks in a row. Plus, the remainder of your staff will appreciate the decision. Heck, the terminated employee may appreciate it in time; sometimes it just isn’t a good fit. Cut them free to find their better role. In the case of the business decision, your shareholders or business partners will appreciate your fiscal responsibility.

 

This article was published in the most recent edition of BusinessWest. Click here to visit.

September 25, 2025
Starbucks is facing a new wave of litigation, in this instance over its workplace dress code. Employees in California, Colorado, and Illinois allege that the Company’s updated policy forced them to purchase clothing items out-of-pocket without reimbursement, raising questions about employer obligations under state expense reimbursement laws. The Lawsuits On September 17, 2025, employees in Illinois and Colorado filed class-action lawsuits, while workers in California submitted complaints to the State’s Labor and Workforce Development Agency. If the Agency declines to act, those workers intend to pursue their own civil claims. The lawsuits are backed by the union organizing Starbucks workers, and plaintiffs argue that requiring employees to buy specific uniform items without full reimbursement violates the states’ statutes. Under laws in California, Colorado, and Illinois, employers must cover necessary business expenses, which can include uniforms or clothing mandated by a dress code. What the Dress Code Requires The revised policy, implemented in May 2025, requires employees to wear a solid black shirt (short or long sleeves, but not sleeveless or midriff-bearing) underneath their signature green apron. Pants must be khaki, black, or denim, and shoes must be in muted tones such as black, gray, navy, brown, tan, or white. The policy also forbids “theatrical makeup” and visible face tattoos, prohibits nail polish and tongue piercings, and limits workers to one (1) facial piercing. In an effort to offset the change, Starbucks provided two shirts free of charge to each employee. Workers contend this was not enough, since multiple additional items were required to comply with the policy. Court documents show that some employees who failed to follow the dress code were subject to verbal warnings or sent home before starting their shifts. Worker Claims One plaintiff, Shay Mannik, a shift supervisor in Colorado, reported purchasing four black T-shirts, compliant shoes, and jeans to meet the dress code requirements. Despite these costs, Mannik claims they were never reimbursed. “It’s unfair that a billion-dollar company puts this burden on workers already struggling with unpredictable hours and understaffed stores,” Mannik stated through attorneys. Starbucks’ Response Starbucks defended the policy as a way to “deliver a more consistent coffeehouse experience to our customers and provide our partners with simpler and clearer dress code guidance.” The Company emphasized that it issued two free shirts to employees to prepare for the change. Key Considerations for Employers The Starbucks litigation underscores several important lessons for businesses:  Uniform Policies May Trigger Reimbursement Duties. Even when employers provide some clothing, state laws may still require reimbursement if employees must make additional purchases. State Laws Differ. California, Colorado, and Illinois all impose expense reimbursement obligations, but requirements vary, and enforcement can be aggressive. Here in Massachusetts, an employer does not need to pay for or reimburse an employee for general clothing, such as khakis, a black shirt, and black shoes, since these are ordinary items that can be worn outside of work. If the employer requires a specific style, brand, or logo (making the clothing a true uniform) then the employer must provide or reimburse for it and cover the cost of maintenance if special cleaning is needed. The only exception for ordinary clothing is if the cost would reduce the employee’s pay below minimum wage. Policy Rollouts Should Weigh Legal Risks. Employers introducing or revising appearance standards should carefully evaluate potential compliance costs, both financial and reputational. Takeaway The lawsuits against Starbucks will test the boundaries of state reimbursement laws and may influence how courts interpret employer obligations regarding dress codes. For companies, this case highlights the need to review policies proactively and ensure expense reimbursement practices comply with applicable state requirements. At The Royal Law Firm, we advise businesses on preventive compliance and represent employers when disputes arise. Our team’s focus on business defense ensures that policies are both operationally effective and legally sound. The Royal Law Firm LLP is a woman-owned, women-managed corporate law firm certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.
September 24, 2025
The Royal Law Firm is proud to announce that we have been ranked in the inaugural Chambers Spotlight Massachusetts Guide, which is a prestigious recognition from the internationally renowned legal research company Chambers and Partners! We are honored to be recognized for our exceptional expertise in Labor & Employment law. This ranking reflects our unwavering commitment to delivering top-tier legal counsel to businesses throughout the Commonwealth and beyond. Only 2% of attorneys are ranked by Chambers. The Royal Law Firm is the only Labor & Employment firm ranked in Springfield, MA. This award highlights small and mid-sized firms with a proven record of excellence and partner-level attention to client matters. Chambers Spotlight is a new guide designed to showcase the very best boutique and mid-sized firms across key U.S. legal markets, focusing on firms that combine regional insight, national impact, and client-focused service. About The Royal Law Firm The Royal Law Firm is a New England-based, women-owned law firm that exclusively represents businesses. Our attorneys are known for their aggressive litigation strategy, proactive employment law counseling, and commitment to understanding every client’s unique business model and goals. We are proud to be certified as a Women-Owned Business through state and national organizations including WBENC, NAMWOLF, and the Commonwealth of Massachusetts Supplier Diversity Office. The Royal Law Firm was founded by Amy Royal in 2008 with a mission to promote diversity in the legal field, serve businesses exclusively, and give back to her hometown community. As a seasoned trial lawyer with over 25 years of civil litigation experience representing companies, Amy specializes in employer-side employment law, business tort defense, labor law, and corporate transactions. She has successfully defended clients in individual and class action cases involving wage and hour issues, discrimination, harassment, FMLA, OSHA, ERISA, and more. Amy also advises on union matters, HR policies, workplace investigations, and affirmative action compliance. Her commercial litigation work spans business torts, unfair competition, and contract disputes, while her transactional practice includes drafting employment agreements, vendor contracts, and regulatory compliance strategies. Our recognition in the Chambers Spotlight Guide reflects the dedication and excellence of our entire team. Thank you to our clients, peers, and community for your continued trust and support. We look forward to continuing to serve you with excellence.