I've worked with hundreds of managers over the course of my HR career, and I've noticed a pattern that holds true across every industry, every company size, and every type of employee problem: managers almost always wait longer than they should to terminate someone.

Sometimes weeks. Sometimes months. In the worst cases, years.

And here's the uncomfortable truth: the delay almost always makes the situation worse — legally, operationally, and for the team that has to keep working alongside the problem employee.

Why Managers Hesitate

It's rarely because they don't know the termination needs to happen. Most managers I work with know. The hesitation comes from a handful of predictable fears:

• Fear of doing it wrong. "What if I say something that gets us sued?" This is a legitimate concern — but waiting doesn't reduce legal risk. It usually increases it.
• Fear of the emotional reaction. Nobody wants to see someone cry, get angry, or beg for their job. That discomfort is real, and it's human. But it's not a business reason to delay.
• Uncertainty about the documentation. "Do I have enough to justify this?" This is the one I help managers answer every day.
• Hope that it will resolve itself. It almost never does. An underperforming or problematic employee rarely self-corrects without a structured intervention — and if they haven't responded to coaching, they're not going to.

What Delay Actually Costs You

"Every week you don't act is a week your best employees watch you tolerate something you shouldn't."

The costs of delay are real and measurable. Your high-performing employees are watching. They see what you allow, and they draw conclusions about your leadership and the organization's standards. The longer a problem employee stays, the more your credibility erodes with the people you most need to retain.

There's also the direct productivity cost — the work that isn't getting done, the errors that keep happening, the team members who are quietly picking up the slack and quietly resenting it.

And yes, there's the legal dimension. Counterintuitively, continued employment can sometimes strengthen a future claim. If someone's performance was bad enough to terminate in March but you kept them until October, a plaintiff's attorney will ask what changed — and why you kept paying them if the situation was as serious as you now claim.

The Documentation Question

The most common thing I hear is: "I don't think I have enough documentation." Sometimes that's true — and the right answer is to build the record deliberately before moving forward. But more often, managers have more documentation than they realize, or they're holding themselves to a standard of proof that isn't legally required.

Employment in Texas is at-will. You don't need to prove a case beyond reasonable doubt. You need a legitimate, non-discriminatory reason and a reasonable paper trail. That's a lower bar than most managers think.

What I do in my documentation review process is look at what exists, identify any gaps or risk factors, and give an honest assessment of where things stand. Sometimes I tell a client they're ready to move. Sometimes I recommend they take a few specific steps first. Either way, they leave with clarity instead of anxiety.

When to Get Help

If any of these sound familiar, it's time to talk to someone before you act — or before you wait any longer:

• The employee is on FMLA, has an active accommodation, or has recently filed a complaint
• You've had performance conversations but nothing was documented
• The employee belongs to a protected class and you're concerned about perception
• You've already delayed for months and aren't sure how that affects your position
• You simply don't want to be in the room when it happens

All of those situations are manageable. None of them mean you're stuck. They just mean you need a plan — and someone who has done this before.

Most small businesses don't think seriously about HR documentation until they're sitting across from a former employee's attorney, or until they receive a charge from the EEOC, or until a manager says "I've been telling her about this for months" and there's not a single piece of paper to show for it.

By then, it's a much harder problem to solve. The documentation that should have been built over weeks or months now has to be reconstructed after the fact — which is both harder and less credible.

The good news is that being prepared isn't complicated. You don't need a 200-page HR manual to start. You need five foundational documents, and you need them before you have a problem — not during one.

1. An Employee Handbook

The handbook is your first line of defense and your clearest communication tool. It sets expectations before disputes arise and establishes the rules you'll rely on when you need to discipline or terminate someone.

A good handbook covers at minimum: at-will employment, anti-harassment and anti-discrimination policies, attendance and leave, performance expectations, technology use, and your complaint procedure. It doesn't need to be fancy. It needs to be signed and dated by every employee.

2. Written Job Descriptions

Job descriptions aren't just recruiting tools — they're legal documents. An ADA-compliant job description that clearly distinguishes essential functions from marginal ones is what allows you to hold someone accountable for performance, what protects you when you deny an accommodation request, and what a judge will look at if you're ever in litigation.

If your job descriptions haven't been updated in years, or if they were written by copying and pasting from a job board, they're probably not doing what you need them to do.

3. A Progressive Discipline Policy (and the Forms to Use It)

You don't necessarily have to follow progressive discipline in every case — Texas is at-will — but having a defined process and using it consistently protects you enormously. The discipline form matters as much as the policy. Verbal warnings that aren't documented don't exist. Written warnings that are vague ("attitude issues") don't hold up.

4. A Leave Policy That Covers Your Obligations

FMLA applies at 50 employees. But state leave laws, ADA accommodations, and your own company-offered leave create obligations long before you hit that threshold. A clear written leave policy prevents the awkward inconsistency of deciding leave requests case by case — which is exactly how you end up treating similarly situated employees differently and creating discrimination exposure.

5. A Complaint and Investigation Procedure

When an employee comes to you with a harassment or discrimination complaint, you need a defined process to follow. The Faragher-Ellerth defense — one of the primary ways employers defend against harassment claims — requires that you had a reasonable complaint procedure and that the employee unreasonably failed to use it. Without the procedure, that defense disappears.

You don't build HR infrastructure during a crisis. You build it before one, so it's there when you need it.

If you're missing any of these five documents, that's where to start. Our Forms & Policies shop has ready-to-use templates for all of them, or we can build a custom package for your organization.

Most HR professionals are comfortable with FMLA in isolation. Twelve weeks, serious health condition, job protection, medical certification — understood. Most are also reasonably comfortable with the basics of ADA: reasonable accommodation, interactive process, undue hardship.

What trips people up is what happens when the two laws apply at the same time — which is exactly when the liability risk is at its highest and the decisions are at their most consequential.

When Both Laws Apply Simultaneously

FMLA and ADA can run concurrently when an employee's serious health condition also qualifies as a disability under the ADA. This is more common than most people realize — many conditions that qualify for FMLA leave (cancer, serious cardiac conditions, significant mental health conditions) also meet the ADA's "substantially limits a major life activity" standard.

When this happens, you have two separate sets of obligations running in parallel, and satisfying one doesn't automatically satisfy the other.

The Most Dangerous Scenario: Exhausted FMLA Leave

Here's where I see employers get into the most trouble. An employee exhausts their 12 weeks of FMLA leave and still can't return to work. The employer, believing their FMLA obligations are complete, terminates the employee. The problem: if the underlying condition is also an ADA disability, the employer may have just skipped the interactive process entirely.

Exhausting FMLA doesn't end your ADA obligations. It often just begins them.

At the point FMLA leave ends, the employer needs to assess whether additional leave — or another accommodation — would be reasonable under the ADA. That analysis has to happen. Terminating without it is one of the most reliably expensive mistakes an employer can make.

The Interactive Process Is Not Optional

When an employee's condition may implicate the ADA, you have an obligation to engage in the interactive process — a good-faith, back-and-forth dialogue to identify potential accommodations. You don't have to grant every accommodation requested. You do have to engage in the process.

Skipping the interactive process, or going through the motions without genuine engagement, is itself an ADA violation regardless of whether a reasonable accommodation existed.

What Good Practice Looks Like

• When FMLA leave is approved, assess simultaneously whether ADA may also apply
• Before FMLA leave expires, begin the ADA interactive process if the condition may qualify as a disability
• Document every step of the interactive process in writing
• Consult with employment counsel for high-exposure situations before acting
• Never terminate an employee on leave without a documented, thorough analysis of both statutes

This is one of the most nuanced areas of employment law, and it's one where getting it wrong is genuinely expensive. If you have an employee situation that involves both leave and a potential accommodation, get help before you act.

Job descriptions are one of the most underestimated documents in HR. Most organizations treat them as recruiting tools — something you dust off when a position opens, post on Indeed, then file away and forget. That's a mistake that creates real legal and operational exposure.

A well-written job description is foundational to almost every major HR function: performance management, accommodation analysis, discipline, termination defense, compensation benchmarking, and FLSA classification. When they're wrong, everything downstream is harder.

The ADA Problem

The Americans with Disabilities Act requires employers to determine whether a requested accommodation would allow an employee to perform the essential functions of their job. The analysis turns entirely on what those essential functions are — and the job description is the primary evidence.

If your job description lists everything an employee does as an essential function, you've painted yourself into a corner. Conversely, if the description is so vague that it doesn't clearly identify what's required, you may struggle to defend a denial of accommodation — or a termination for failure to meet job requirements.

The question isn't whether a task is performed. It's whether the position exists to perform that task.

The Performance Management Problem

When you need to discipline or terminate an employee for performance issues, what are you measuring them against? If the job description doesn't clearly define expectations, performance standards become subjective — and subjectivity in performance management is how discrimination claims get legs.

The FLSA Classification Problem

Exempt or non-exempt? The answer depends significantly on what an employee actually does — which should be reflected in the job description. Misclassification is one of the most common and costly wage-and-hour violations, and it often starts with a job description that overstates management responsibilities or executive duties to justify a salary.

What a Good Job Description Actually Looks Like

• Clearly distinguishes essential functions from marginal or incidental duties
• Describes what needs to be accomplished, not just how it has historically been done
• Includes physical and environmental requirements that are actually required
• Is reviewed and updated when the role substantively changes
• Is signed by the employee as acknowledgment of their responsibilities

Our 7-module course on job descriptions covers all of this in depth — including real case studies on how job description failures create legal exposure. If you'd rather have us audit your existing descriptions, we offer that as a consulting service as well.

Open enrollment is the one time each year when employees are actually paying attention to their benefits. And most employers squander it — burying employees in PDFs nobody reads, hosting one-time information sessions with no follow-up, and wondering afterward why benefit utilization is low and employees think their coverage is worse than it is.

Benefits are often one of the largest line items in your compensation budget. Your employees' understanding of what they have directly affects their satisfaction, their retention decisions, and — in the case of health coverage — their actual wellbeing. Getting the communication right matters.

The Three Most Common Open Enrollment Mistakes

1. Treating it as a one-time event

Open enrollment isn't a day — it's a campaign. Effective enrollment communication starts weeks before the window opens and continues through the deadline with reminders, explainers, and clear calls to action. Employees who feel informed are employees who make good decisions and appreciate what they have.

2. Presenting options without helping employees choose

Most enrollment materials describe what the plans are, not how to think about which one is right for different situations. A simple decision guide — even a one-pager — that walks through scenarios ("if you rarely use healthcare," "if you have a family," "if you have ongoing prescriptions") increases engagement and reduces the number of employees who default to whatever they had last year without thinking.

3. Forgetting that not everyone reads English fluently

If you have a multilingual workforce, your English-only enrollment materials are not serving a significant portion of your employees. This isn't just a communication problem — it has equity and potential legal implications when employees miss enrollment windows or make uninformed elections due to language barriers.

What a Good Open Enrollment Looks Like

• A communication calendar with touchpoints starting 3–4 weeks before the window opens
• Plain-language summaries of each plan option
• A decision guide or comparison tool
• Manager briefings so managers can answer basic questions
• Materials in all languages represented in your workforce
• A clear deadline reminder and confirmation process

Benefits administration and open enrollment support is one of our core services. If your enrollment season is coming up and you want help building a communication strategy, let's talk.

Federal employment law sets a floor — a minimum standard that applies everywhere. Most HR professionals know the federal framework reasonably well. What catches multi-state employers off guard is everything that sits on top of it: the patchwork of state and local laws that vary dramatically in their requirements and, in many cases, are significantly more employee-protective than federal law.

If you have employees in more than one state, you don't get to pick the most convenient set of rules to follow. You comply with the law applicable to each employee's work location — and that law changes depending on where they sit.

The Most Common Multi-State Compliance Gaps

State-Specific Leave Laws

This is the one that surprises employers most. California, New York, Washington, Colorado, Oregon — and a growing list of other states — have mandatory paid leave programs that operate independently of FMLA. Some are funded through payroll deductions. Some require employer contributions. All require compliance regardless of what your company leave policy says.

If you hired remote employees in new states without auditing your leave policies, there's a meaningful chance you're out of compliance right now.

Salary and Pay Transparency Requirements

An increasing number of states now require employers to disclose salary ranges in job postings — including for remote positions that could be filled by someone in a covered state. Posting a job nationally without a salary range may violate state law in California, Colorado, New York, Washington, and others.

Final Paycheck Timing

Every state has its own rules about when a terminated employee must receive their final paycheck. In California, it's the day of termination for involuntary separations. In Texas, it's within six calendar days. In other states, it may be the next regular payday. Applying your home state's rules to employees in other states is a wage-and-hour violation waiting to happen.

Non-Compete Enforceability

If you have employees sign non-compete agreements, enforceability varies dramatically by state — from broadly enforceable to completely void (California will not enforce them at all). Using a uniform non-compete template across all states is a false sense of security.

What to Do About It

The starting point is a state-by-state audit of your workforce — identifying where your employees are located, what state laws apply to each location, and where your current policies fall short. This is exactly what our Compliance Risk Analysis service delivers.

Multi-state compliance isn't about being a legal expert in every state. It's about knowing which questions to ask and where to find the right answers.

If your organization has grown into new states — especially through remote hiring — and you haven't done a compliance audit recently, now is the time.