Guide to Firing Employees in Wisconsin for Employers

April 29th 2024

Firing an employee is challenging for any employer, carrying significant legal, ethical, and practical considerations. In the state of Wisconsin, there are specific laws and regulations governing the termination process to protect both employers and employees.

Understanding the legal framework surrounding employee termination is crucial for employers to conduct the process smoothly and minimize the risk of legal repercussions. In addition, handling terminations with sensitivity and professionalism helps maintain a positive workplace morale and reputation.

This guide discusses the key aspects of firing employees in Wisconsin, including relevant laws, best practices, and strategies for conducting terminations fairly and respectfully.

This firing guide covers:

What Does Firing an Employee in Wisconsin Involve?
Differentiating between Firing, Layoffs, and Resignations in Wisconsin
Why Does a Well-Planned Termination Process Matter in Wisconsin?
Termination Laws in Wisconsin: What You Need to Know
Legal Implications of Wrongful Termination in Wisconsin
Required Documents for Employers and Terminated Employees in Wisconsin
Who is Responsible for Firing Employees in Wisconsin?
How Long is the Termination Process in Wisconsin?
How Can You Prepare for Termination in Wisconsin?
Steps for a Respectful Termination Process in Wisconsin
Post-Termination: What Happens Next After Terminating an Employee in Wisconsin?
Legal Considerations During Termination in Wisconsin
Bonus: Best Practices for Reducing Litigation Risks in Wisconsin

What Does Firing an Employee in Wisconsin Involve?

Firing or terminating an employee is the process of permanently ending an employee’s employment contract because of performance issues, misconduct, redundancy, or business closure. Firing an employee in Wisconsin involves several key steps and considerations to ensure the termination is conducted legally, ethically, and professionally.

Differentiating between Firing, Layoffs, and Resignations in Wisconsin

In the context of employment terminations, employers need to understand the differences between firing, layoffs, and resignations. Each scenario has distinct implications for both the employee and employer:

Firing in Wisconsin

Firing, also known as termination, occurs when an employer ends an employee’s employment for reasons such as poor employee performance, misconduct, or violation of company policies.

In Wisconsin, employers follow the “at-will” doctrine, meaning that the employer or employee can terminate the employment relationship at any time, with or without cause, unless an employment contract states otherwise. However, there are exceptions to “at-will” employment, such as cases of discrimination, retaliation, or violation of public policy. If an employee believes they were fired unjustly, they may have grounds for legal action under these exceptions.

Layoffs in Wisconsin

Layoffs occur when an employer reduces its workforce due to economic downturns, organizational restructuring, or changes in business needs. Unlike firing, layoffs are not the employee’s fault but, instead, due to external factors affecting the employer.

In Wisconsin, employers must comply with both federal and state laws when conducting layoffs. This includes adhering to the Worker Adjustment Retraining Notification (WARN) Act, which requires certain employers to provide advance notice of mass layoffs or plant closings.

Employees who are laid off may be eligible for unemployment benefits through the Wisconsin Department of Workforce Development, provided they meet certain criteria.

Resignations in Wisconsin

Resignation occurs when an employee voluntarily decides to end their employment with an employer. This could be due to finding a new job, personal reasons, or dissatisfaction with the current job.

In Wisconsin, employees are not entitled to unemployment benefits if they voluntarily resign from their jobs, unless they can demonstrate that the resignation was for “good cause”, which is interpreted as a valid, substantial reason for which your employer is responsible, and which leaves you with no reasonable alternative but to quit. This might include a situation where the employer substantially changes the terms of employment or creates a hostile work environment.

Employees are recommended to give notice to their employer before resigning. The length of notice depends on the terms of the employment contract or company policies.

Why Does a Well-Planned Termination Process Matter in Wisconsin?

A well-planned termination process matters in Wisconsin for several reasons:

  • It helps ensure compliance with state and federal employment laws, reducing the risk of costly legal disputes and potential liability for wrongful termination claims.
  • It promotes fairness and transparency in the workplace, fostering a positive organizational culture and maintaining employee morale and trust.
  • It allows employers to effectively communicate expectations, provide feedback, and offer support to departing employees, facilitating a smoother transition for the terminated employee and their colleagues.
  • It safeguards the reputation and brand image of employers within the local community and industry, which is crucial for attracting and retaining top talent in the future.

Termination Laws in Wisconsin: What You Need to Know

  • Title VII of the Civil Rights Act of 1964: Title VII prohibits discrimination in employment based on race, color, religion, sex, or national origin. Employers in Wisconsin must comply with Title VII requirements to avoid allegations of unlawful termination and potential legal action.
  • Americans with Disabilities Act (ADA): The ADA prohibits discrimination against individuals with disabilities in all aspects of employment, including termination. Employers must provide reasonable accommodations to employees with disabilities and cannot terminate them based on their disability status.
  • Age Discrimination in Employment Act (ADEA): The ADEA protects individuals who are 40 years of age or older from age-based discrimination in employment, including termination. Employers cannot terminate employees based on their age or take adverse actions against them due to their age.
  • Family and Medical Leave Act (FMLA): The FMLA provides eligible employees with job-protected leave for certain family and medical reasons. Terminating an employee for taking FMLA leave or retaliating against them for exercising their FMLA rights can lead to legal claims for wrongful termination.
  • Wisconsin Fair Employment Act (WFEA): This state law prohibits employment discrimination based on race, color, religion, national origin, ancestry, age, sex, disability, arrest or conviction record, marital status, sexual orientation, or military status.
  • Wisconsin Worker’s Compensation Act: This law provides benefits to employees who are injured on the job. Employers are prohibited from retaliating against employees for filing workers’ compensation claims.
  • Wisconsin Wage Payment and Collection Law: This law governs the payment of wages to employees, including requirements for final paychecks upon termination.
  • Wisconsin Unemployment Insurance and Reserves: This law supports the employees even after termination. When an employee is terminated, they may be eligible to receive unemployment benefits if they were not at fault for the termination.
  • Wisconsin Worker Adjustment and Retraining Notification (WARN) Act: This law requires certain employers to provide advance notice of plant closures or mass layoffs.

Wrongful termination in Wisconsin can have significant legal implications for employers. Here are some of the key legal implications:

  • Employment Discrimination Laws: Wisconsin law prohibits discrimination in employment based on various protected characteristics, including race, color, national origin, ancestry, religion, sex, age, disability, sexual orientation, and marital status. Wrongful termination based on these protected characteristics can lead to legal claims under state and federal anti-discrimination laws.
  • Retaliation Claims: Wisconsin law prohibits employers from retaliating against employees for engaging in these protected activities, such as filing a complaint about workplace discrimination, reporting unsafe working conditions, or participating in investigations related to labor law violations.
  • Violation of Employment Contracts: If an employment contract exists between the employer and employee, wrongful termination in violation of the terms and contracts, implied contracts, or promises made by the employer regarding job security or termination procedures could give rise to legal claims for breach of implied contract.
  • Violation of Public Policy: Wisconsin recognizes a public policy exception to the “at-will” employment doctrine, which means that employers cannot terminate employees for reasons that violate public policy. Wrongful termination in violation of public policy can lead to legal claims for wrongful discharge in violation of public policy.
  • Whistleblower Protection Laws: Wisconsin law protects employees who report violations of law or public policy by their employers. Wrongful termination in retaliation for whistleblowing can result in legal claims under the Wisconsin whistleblower protection law.
  • Unemployment Compensation: If an employee is wrongfully terminated, they may be eligible to receive unemployment compensation benefits through the Wisconsin Department of Workforce Development. Employers who wrongfully terminate employees may be required to pay unemployment benefits and may also face higher unemployment insurance taxes.
  • Civil Lawsuit and Damages: Wrongfully terminated employees may file civil lawsuits against their former employers seeking damages for lost wages, emotional distress, punitive damages, and attorney fees and costs.

Required Documents for Employers and Terminated Employees in Wisconsin

In Wisconsin, employers and terminated employees have certain requirements regarding documentation and procedures.

Employers’ Requirements

  • Final Paycheck: Employers must provide a terminated employee with their final paycheck, including any accrued but unused vacation or paid time off, on or before the next regular payday following the termination date. Failure to provide timely payment may result in penalties.
  • Notice of Termination: While Wisconsin is an “at-will” employment state, employers may still provide terminated employees with a written notice of termination. This notice can include the reason for termination, the effective date, and any relevant information regarding benefits continuation or other post-employment matters.
  • COBRA Notification: For employers subject to the Consolidated Omnibus Budget Reconciliation Act (COBRA), which generally applies to employers with 20 or more employees, terminated employees must be provided with notice regarding their rights to continue their group health insurance coverage under COBRA.
  • Unemployment Insurance Information: Employers are required to provide information to terminated employees about how to apply for unemployment insurance benefits through the Wisconsin Department of Workforce Development. This information may include instructions on how to file a claim and any relevant details.

Terminated Employees’ Requirements

  • Return of Company Property: Terminated employees are required to return any company property, such as keys, access badges, company-owned equipment, or confidential documents upon termination. This helps protect the employer’s assets and sensitive information.
  • COBRA Election: If eligible for COBRA continuation coverage, terminated employees must elect to continue their group health insurance coverage by completing and returning the necessary forms to the employer or benefits administrator within the specified timeframe.
  • Unemployment Insurance Application: Terminated employees who wish to receive unemployment insurance benefits must file a claim with the Wisconsin Department of Workforce Development. This involves completing an application form providing employment history information and the reason for separation.
  • Review of Termination Documentation: Terminated employees should review any termination documentation provided by the employer, such as a termination letter, to ensure accuracy and to understand any implications for benefits or future employment.

Who is Responsible for Terminating in Wisconsin?

In Wisconsin, the responsibility for firing employees falls on several stakeholders within the company — Human resources (HR), managers, and legal counsel. Here are their respective roles and responsibilities:

Role and Responsibilities of Human Resources 

HR professionals play an important role in the termination process. Their responsibilities are to:

  • Ensure compliance with federal, state, and local employment laws and regulations.
  • Provide guidance and support to managers and supervisors throughout the termination process, including training on proper procedures and documentation.

Role and Responsibilities of Managers

Managers are often directly involved in the decision to terminate an employee; their responsibilities are to:

  • Document performance issues or misconduct that may warrant termination and discuss concerns with HR and legal counsel as needed.
  • Follow established company policies and procedures for addressing disciplinary issues and conduct terminations.

Role and Responsibilities of Legal Counsel

Legal counsel provides guidance and assistance to employers throughout the termination process, especially when situations involve legal risks; their responsibilities are to:

  • Review company policies and procedures to ensure compliance with relevant employment laws and regulations.
  • Advise on the legality and potential consequences of terminating an employee in cases involving discrimination, retaliation, or other sensitive issues.
  • Assist with drafting termination letters or agreements to ensure clarity and enforceability while minimizing the risk of litigation.

How Long is the Termination Process in Wisconsin?

The length of the termination process in Wisconsin can vary depending on various factors, including the specific circumstances of the termination, the employer’s policies and procedures, and any legal requirements that may apply. Employers should follow established policies and procedures, comply with legal requirements, and handle terminations with professionalism and sensitivity to ensure a smooth and orderly termination process.

How Can You Prepare for Termination in Wisconsin?

Preparing for termination in Wisconsin involves careful planning and adherence to legal requirements to minimize risks and ensure a smooth transition for employers and employees. Here are some steps employers can take to prepare for termination:

  • Review Policies and Procedures: Ensure that your company’s termination policies and procedures are up to date and compliant with federal, state, and local laws, as well as any contractual obligations. This includes understanding the requirements for providing notice of termination, final pay, and severance benefits.
  • Document Performance Issues: Maintain thorough documentation of any performance issues, disciplinary actions, or misconduct incidents involving the employee. This documentation can support the decision to terminate and help defend against potential legal claims.
  • Consult Legal Counsel: Seek guidance from legal counsel to ensure compliance with applicable employment laws and to assess potential legal risks associated with the termination. Legal counsel can also provide advice on how to handle sensitive termination situations and minimize the risk of legal claims.
  • Prepare Documentation: Before meeting with the employee to discuss termination, prepare any necessary documentation, including a termination letter or notice, severance agreement, and information about benefits continuation and final pay.
  • Plan the Termination Meeting: Schedule a private meeting with the employee to communicate the decision to terminate. Ensure that the meeting is conducted in a professional, respectful, and confidential manner, with appropriate individuals present to provide support or answer questions.
  • Address Logistics: Arrange for the return of company property (keys, access badges, laptops, and any other equipment or materials) issued to the employee. Provide information about how to access final pay and benefits, as well as any assistance with transitioning responsibilities or applying for unemployment insurance.
  • Communicate with Staff: Depending on the circumstances of the termination, communicate with relevant staff members about the departure of the employee and any changes in responsibilities or workflow. Handle communications with sensitivity and confidentiality to maintain morale and minimize disruption.
  • Follow-Up After Termination: After the termination, follow up with the terminated employee to ensure that any post-termination obligations are fulfilled, such as providing final pay and benefits documentation. Monitor the transition period to address any remaining tasks or concerns related to the employee’s departure.

Steps for a Respectful Termination Process in Wisconsin

Terminating an employee is never easy, but ensuring the process is handled respectfully and in compliance with relevant laws is crucial. Here are some steps to follow for a respectful termination process:

  • Review Employment Agreement and Policies: Before taking any action, review the employment contract and company policies regarding termination. Ensure that the termination is in line with any contractual obligations and internal procedures.
  • Document Performance Issues: If the termination is due to performance issues, ensure that you have documented instances of poor performance, including warnings or performance improvement plans (PIP). This documentation becomes useful if disputes may arise.
  • Review State and Federal Laws: Familiarize yourself with Wisconsin labor laws and federal regulations that govern termination. Ensure that the termination does not violate any anti-discrimination laws or employment contracts.
  • Schedule a Private Meeting: Arrange a meeting with the employee to discuss the termination. Choose a time and place that allows for privacy and minimizes embarrassment.
  • Prepare for the Meeting: Have a script or outline of what you will say during the meeting. Be clear, concise, and professional in your communication. Anticipate questions the employee may have and prepare responses.
  • Communicate Clearly: During the meeting, clearly communicate the reasons for the termination. Do not be confrontational or emotional. Stick to the facts and do not make personal attacks.
  • Provide Support: Offer support to the employee during the transition, such as access to counseling services. If applicable, explain any severance packages or benefits the employee is entitled to receive.
  • Assist in Collecting Company Property: If the employee has company property (keys, badges, electronic devices), collect them and ensure the employee understands the process for returning any company property and retrieving personal belongings from their workspace.
  • Finalize Paperwork: Ensure that the paperwork is accurate and complies with state and federal requirements.
  • Notify Relevant Properties: Inform other employees who may be affected by the termination. Ensure that confidentiality is maintained and avoid disclosing unnecessary details.
  • Conduct an Exit Interview: Gather feedback from the departing employee. Use this feedback to identify areas for improvement in your organization.

Post-Termination: What Happens After Terminating Employees in Wisconsin?

After terminating an employee in Wisconsin, there are several important steps that employers should take to ensure a smooth transaction and address any post-termination obligations. Here is what happens next after terminating an employee:

  • Provide Final Paycheck: Wisconsin labor laws require employers to provide terminated employees with their final paycheck, including any accrued wages, vacation pay, or other compensation owed, on or before the next regular payday following the termination date.
  • Offer COBRA Continuation Coverage: If the terminated employee was enrolled in the employer’s group health insurance plan, the employer must provide information about their rights to continue their health insurance coverage under the federal COBRA. The employee may have the option to continue their coverage for a limited period.
  • Return Company Property: The terminated employee should return any company property in their possession, such as keys, access badges, laptops, mobile devices, and uniforms. Employers may need to follow up to ensure that all company property is returned.
  • Address Employee Reactions: Be prepared to address reactions from remaining employees to the termination. Provide reassurance about the organization’s commitment to supporting employees and maintaining a positive work environment. Address any concerns or questions with empathy and transparency.
  • Transition Responsibilities: Arrange for the transition of the terminated employee’s responsibilities to other team members or reassign duties as needed to ensure continuity of operations. Communicate any changes in workflow or reporting structures to relevant staff members.
  • Maintain Confidentiality: Respect the terminated employee’s privacy and confidentiality by refraining from discussing the details of the termination with other employees unless necessary for business reasons and with appropriate authorization.
  • Conduct Exit Interviews: Conduct exit interviews with the terminated employee to gather feedback on their reasons for leaving and their experiences with the organization. Use this feedback to identify areas for improvement and how to enhance employee satisfaction.

Legal Considerations During Termination in Wisconsin

During the termination process in Wisconsin, employers must be mindful of several legal considerations, to ensure compliance with state and federal laws and minimize the risk of legal challenges. Here are some key legal considerations:

  • “At-Will” Employment: Wisconsin is an “at-will” employment state, meaning that employers can terminate employees at any time, for any reason or no reason at all, with or without cause, unless there is a contract stating otherwise. However, employers must still comply with applicable laws prohibiting discrimination, retaliation, and wrongful termination.
  • Anti-Discrimination Laws: Employers in Wisconsin must not terminate employees based on protected characteristics such as race, color, national origin, ancestry, religion, sex, age, disability, sexual orientation, or marital status. Termination decisions should be based on legitimate, non-discriminatory reasons related to job performance, conduct, or business needs.
  • Retaliation Protections: Wisconsin law prohibits employers from retaliating against employees for exercising their rights under employment laws, such as reporting discrimination or harassment, participating in investigations, or asserting their rights to wages or benefits. Employers should not terminate employees in retaliation for engaging in protected activities.
  • COBRA Compliance: Employers subject to the federal COBRA are those with 20 or more employers. They must comply with requirements related to offering continuation support coverage to eligible employees and their dependents upon termination of employment. Employers must provide timely notices and information about COBRA rights and benefits continuation.
  • Final Pay Requirements: Wisconsin labor law requires employers to provide terminated employees with their final paycheck, including any accrued wages, vacation pay, or other compensation owed, on or before the next regular payday following the termination date. Failure to provide the final pay promptly may result in penalties.
  • Severance Agreements: If an employer offers severance pay or benefits to a terminated employee in exchange for a release of claims, the terms of the severance agreement must comply with applicable laws and regulations. It is essential to ensure that the agreement is voluntary, knowing, and supported by consideration.
  • Documentation and Recordkeeping: Employers should maintain thorough documentation of the termination process, including any performance evaluations, disciplinary records, termination notices, and communications with the employee. Accurate recordkeeping can help defend against potential legal claims and demonstrate compliance with legal requirements.
  • Consultation with Legal Counsel: When in doubt about legal obligations or potential risks associated with a termination process, employers should seek guidance from legal counsel who can provide advice on navigating complex legal issues, ensuring compliance with applicable laws, and minimizing the risk of legal challenges.

Bonus: Best Practices for Reducing Litigation Risks in Wisconsin

Reducing litigation risks in Wisconsin requires a proactive approach and adherence to best practices. Here are some key strategies employers in Wisconsin may follow:

  • Establish Clear Policies and Procedures: Establish and maintain up-to-date employee handbooks and policies that outline expectations, disciplinary procedures, and termination processes. Ensure that employees are aware of these policies and consistently apply them across the organization.
  • Training and Education: Train managers and supervisors on relevant employment laws and proper handling of termination processes. Encourage open communication and provide resources for addressing employee concerns or grievances before they escalate.
  • Consistent Documentation: Document performance issues, disciplinary actions, and termination decisions thoroughly and consistently. Keep detailed records of employee evaluations, warnings, performance improvement plans (PIPs), and termination meetings. The documentation should serve as evidence of fair treatment and legitimate business reasons for termination.
  • Fair and Objective Evaluation: Termination decisions should be based on objective criteria and job-related performance metrics rather than personal biases or preferences. Conduct fair and impartial investigations into allegations of misconduct or performance deficiencies, allowing employees an opportunity to provide their perspectives.
  • Legal Review of Termination Decisions: Consult with an experienced employment law attorney before making termination decisions, especially in cases involving potential legal risks or complex issues. An attorney can guide compliance with state and federal laws.
  • Transparent Communication: Communicate openly and honestly with employees about the reasons for termination and provide clear and constructive feedback when appropriate. Avoid making promises or commitments that cannot be fulfilled, and ensure that termination decisions are communicated respectfully and professionally.
  • Review Severance Agreement: If offering a severance package to a terminated employee, ensure that the terms of the agreement are fair, reasonable, and compliant with applicable laws. Consider including a release of claims provision to minimize the risk of future litigation.
  • Post-Termination Follow-Up: Conduct post-termination reviews to assess the effectiveness of the termination process and identify improvement opportunities. Address any employee concerns or feedback and take proactive steps to prevent future disputes or legal challenges.

Final Thoughts

Firing an employee in Wisconsin is a substantial decision that affects workers and employers. For employers in Wisconsin, familiarizing themselves with these laws and implementing best practices helps mitigate legal risks, promote fairness and equity in the workplace, and maintain positive employee relations.

Important Cautionary Note

This content is provided for informational purposes only. While we make every effort to ensure the accuracy of the information presented, we cannot guarantee that it is free of errors or omissions. Users are advised to independently verify any critical information and should not solely rely on the content provided.

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