Yes, You Can—But You Need a Careful Process

The short answer is yes, you can fire an employee who has filed a whistleblower complaint. But if you handle it poorly, you expose your company to a retaliation claim—even if the termination is entirely justified by performance issues. The key is building a documented record that makes your legitimate reasons for termination undeniable.

Document Performance Issues Before They File

Every time an employee has a performance problem, document it with the date and specifics. Turn subjective observations into objective evidence: instead of writing “John had a bad attitude,” write “On December 2, another employee reported that John said, ‘I hate this place. Management is corrupt.’” Direct quotes from witnesses are far stronger than your own characterizations. Build this file consistently—not just when you’re preparing to terminate.

Timing Matters More Than You Think

If your documentation shows a long pattern of problems predating the whistleblower complaint, your position is strong. If you only start documenting after the complaint, it looks like retaliation—regardless of your actual reasons. The paper trail needs to tell the story of an employee who was already on the path to termination before any protected activity occurred.

Before terminating any employee who has engaged in protected activity—whistleblowing, discrimination complaints, OSHA reports—sit down with an employment attorney. A small investment in legal advice upfront can prevent a costly retaliation lawsuit. Your attorney can review your documentation, assess the timing risks, and help you execute the termination in a defensible way.

Video Transcript

Can you fire an employee who is a whistleblower? That is a question I am answering today. So here is the setup. Let’s imagine that you are preparing to fire an employee. He has a bad attitude. He doesn’t do his job on time. He is slow. He causes problems with other employees, shows up late, leaves early, checking his phone throughout the day, takes more breaks than he should, gossips, just causes problems at the company. You are getting ready to let this employee go. And then the employee reports your company to the government. Maybe it is an OSHA violation; maybe it is some other allegation that the company is doing something wrong.

The question then is, can you fire that employee? Can you still let him go? The short version is yes, you can fire them, but you need to be very careful. And there are some best practices and processes you can go through that will help protect you should the employee later claim that you were firing him because he was a whistle-blower and you were retaliating.

I am Aaron Hall. I am a business attorney. I help entrepreneurs and business owners. The goal of this channel is to help you as a business owner avoid legal problems and to do that by educating you about what the legal issues are and help you spot issues to discuss with your attorney. This is not a replacement for an attorney, but rather it is a channel that helps empower you with general educational information to be a better business owner to achieve success in your company and in your life.

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All right, so let’s say you are about to fire somebody. They just filed a whistleblower claim. You want to avoid a claim that you are terminating the whistleblower in retaliation. How do you do that?

Step One: Document Performance Issues 

So ideally, every time the employee has performance issues, you document it. You put the date, and you put all the information you have. Now, let’s say, for example, it is something subjective. So like, he had a bad attitude. That doesn’t look very good. It is not the strongest of evidence, but there is a way that you can take subjective information or evidence and make it objective.

Here is how. Let’s say somebody reports to you that John has a bad attitude. Instead of writing, “On December 2nd, 2023, employee John Smith had a bad attitude,” put in there another employee reported that John Smith had a bad attitude. So as you can see, instead of it saying subjectively it was a bad attitude, you are objectively reporting that another employee observed and felt it important enough to come report that bad attitude. Also, if you can have quotes, that is even better. Like the employee said, “I hate this place. Management is so corrupt. Management is so bureaucratic. Nobody gets anything done around here. We are not appreciated,” yada, yada, yada.

I am not suggesting that that evidence alone is enough to overcome a whistleblower retaliation claim. But what you want to do is have a thorough documentation of all of the problems that led up to letting an employee go. So when the employee later claims it was retaliation for a whistleblower claim, or it is because of my skin color, or it is because of my religion, or it is because of some other protected class. You can say, no, it had nothing to do with that. It was because of all these reasons which were documented, so documenting objective reasons for the termination and keeping a record. Very important for protecting yourself should there be a claim that later you illegally terminated somebody for an unlawful purpose.

Step Two: Follow Company Policies and Procedures 

For example, if you have an employee handbook and it says discipline will be handled in this manner with the following steps, perhaps it is an incremental increase in consequences. You need to make sure you follow that because, in a whistleblower retaliation case, the question will come up, “Did you follow your own policy and procedures for handling discipline and discharge of an employee?”

Step Three: Avoid the Appearance of Retaliation 

Now, we talked about why you should document things, but there might even be actions that you could take that would suggest the termination is in retaliation when in fact, it is just an appearance issue. For example, let’s say that you make an announcement to the staff that this employee was let go, and let’s assume that you have documented evidence. But if you immediately make that announcement and say, by the way, they just reported us to OSHA, well, that is having an appearance that the report was tied to the termination. So there is an example of where you just want to have, you don’t want to mention that. You may not mention any reason at all, or if you do mention it, you don’t mention the whistleblower claim. You mention the reasons that led up to it. And by the way, it is generally best practice not to mention the reasons that led up to it because it is negative. It feels gossipy at times. It is focusing on the past, and you also might open yourself up to a defamation claim if word gets back to that terminated employee that you were badmouthing them and they believe it was you made some sort of false statements.

So timing is an important issue when thinking about the appearance of impropriety. For example, if you get notice of a whistleblower claim on a Tuesday. It is probably not the best to terminate the employee Tuesday night or Wednesday. It is important to make sure that claim has the appearance of being separated. And again, I have already talked about the substance. It should totally be separated. You can’t fire somebody because they report something illegal to the government. But avoiding that appearance and being thoughtful about that will go a long way to avoid evidence being used against you later in a whistleblower case.

Step Four: Consider Offering a Severance Package

When you let somebody go, you can offer payment in exchange for them releasing any sort of claims against you. Claims that are known are unknown. Now there are very strict federal and state rules about a severance agreement, which lawyers usually call a separation agreement. And those rules relate to giving a period of time for a person to consider the document and retract it if they change their mind. There is also special language that needs to go in there, but here is the general If you are concerned that an employee who you terminate may later sue you for some sort of unlawful termination, like discrimination, whistleblower retaliation, etc. You can work with that individual to have a contract that says you have settled any disputes between you. And in exchange, usually, that employee gets some sort of money. It could be a thousand dollars. It could be compensation based on a period of time, two weeks working a month. I think I have even seen three months or six months in some extreme cases. That is one option, putting together a separation agreement or a severance package for the employee in exchange for the employee waiving any claims for unlawful termination.

Step Five: Consult with an Attorney 

A business attorney who is experienced in employment law can help you navigate the unique circumstances of your situation and can bring to light any federal or state laws in your area that would be important to consider prior to the termination of the employee.

I love it when clients contact me before terminating an employee because we can get all our ducks in a row, but when people terminate someone and then contact me. I may say, “Look, let’s get together our documentation.” But often, it means putting it together later, and that simply doesn’t look as good as if the documentation were put together at the time the employee was, being disciplined or other information about the employee was brought to the attention of the employer.

Conclusion

All right, so there you have it. Can you fire an employee who is a whistleblower? Absolutely, but you should do it very cautiously, following some of the tips that I talked about today.

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