“Can I Fire Them?” Is Usually the Wrong First Question

“Can I fire them?” is usually the wrong first question. The better question is: “What have I documented?”

I get some version of that call a few times a month. Usually it is a business owner in Cleveland, Akron, or Canton who has been carrying a difficult employee for the better part of a year and has finally hit the wall. They want permission. What they actually need is a file.

At-will does not mean risk free

Ohio is an at-will state. You can end the employment relationship for any reason or no reason, as long as the reason is not an illegal one. That sounds like broad protection, and owners hear it that way.

Here is the catch. At-will is a defense, not a shield. It only works if the story you tell later lines up with what you wrote down at the time. If a former employee claims the real reason was discrimination or retaliation, the question stops being whether you had the right to fire them and becomes whether a neutral third party believes your version of events.

Since 2021, Ohio law gives that former employee two years from the alleged discriminatory act to file a charge with the Ohio Civil Rights Commission. Two years is a long time to remember why a Tuesday in March went badly. Your memory will fade. Your notes will not.

What good documentation actually looks like

Most small business personnel files fail in the same three places. Fix these and you are ahead of most employers your size.

Written expectations the employee actually received. Not a job description sitting in a shared drive since 2019. A current one, delivered, and ideally acknowledged in writing. If a standard was never communicated, it is hard to argue it was violated.

Dated notes from coaching conversations, even short ones. Three sentences typed into an email to yourself the same afternoon are worth more than a polished memo written six months later. Capture the date, what you said, what they said, and what you agreed would change.

Warnings that say what happens next, followed by consistent follow-through. “This is your final warning” only means something if the next step actually arrives. Inconsistency is the first thing an opposing attorney looks for. If you gave one employee three chances and another none, you have handed someone a comparison to argue about.

The unemployment piece most owners forget

There is a second, quieter cost. When a discharged employee files for unemployment in Ohio, the question is whether the separation was for just cause. In practice that means showing a specific act, close in time to the discharge, that the employee knew or should have known could cost them the job. Firsthand accounts and notes written at the time carry that. “They were just never a good fit” does not, and your account gets charged for the difference.

Build the file before you need it

The time to build documentation is months before a termination, not the night before. A file assembled in a panic reads like a file assembled in a panic, and everyone in the room can tell.

For a small business without an HR department, this does not have to be heavy. A one page performance standard for each role, a habit of writing down coaching conversations the day they happen, and a warning template you actually use will cover most of it. Call it thirty minutes a month.

If a termination is on your horizon, slow down and get the documentation right first. Future you will be grateful.

Where to start

Pull the file on the employee you are worried about and read it as if you were a stranger. If it does not tell a clear story of what was expected, what went wrong, and what you did about it, you have your answer about what to fix this week.

Sharp HR works with small businesses across Northeast Ohio and nationally on employee relations, documentation, handbooks, and compliance. If you are staring at a difficult situation right now, contact me here and we can talk through where you stand before you act.

This article is general information for educational purposes and is not legal advice. It does not create a consulting or attorney client relationship. For guidance on your specific situation, consult a qualified professional.

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