Can I fire an employee for poor performance without warnings?

Every small business owner eventually faces it: an employee who simply isn’t performing.
Deadlines are missed, work quality slips, and clients start noticing. Your gut says, It’s time to let them go. But your mind asks, Can I legally fire them for poor performance without giving a warning?

The short answer: Sometimes yes, sometimes no — it depends on where you operate, your employment contracts, and your HR policies.
The long answer is what we’ll cover in this post, along with practical, risk-reducing strategies so you can make the right call without walking into a lawsuit or a PR nightmare.

1. Understanding the Legal Landscape

At-Will Employment

In the U.S., most states follow at-will employment, meaning either the employer or employee can terminate the working relationship at any time, for almost any reason — as long as it’s not illegal (e.g., discrimination, retaliation).
This technically means you can fire an employee for poor performance without a warning in most cases.

However…

• If you have an employment contract or union agreement, it may outline a performance improvement or disciplinary process you must follow.

• If your employee handbook promises “progressive discipline” or “verbal/written warnings,” not following it could expose you to wrongful termination claims.

State and Local Variations

Certain states (Montana, for example) have more restrictive laws requiring “good cause” for termination after a probationary period.
Some cities and counties have “just cause” ordinances that apply to specific industries, requiring documented reasons and prior warnings.

Pro Tip: Always check state labor laws and your own HR policies before making a termination decision.

2. Risks of Firing Without Warnings

While you may legally be able to fire without warnings, risk management should be your top priority. Here’s why:

• Wrongful Termination Claims – Even in at-will states, terminated employees can allege discrimination or retaliation.

• Reputation Damage – Other employees may feel insecure or distrustful if they see someone fired without notice.

• Loss of Institutional Knowledge – A quick termination without a transition plan can cause operational headaches.

• Unemployment Insurance Disputes – Without documented poor performance, you may lose unemployment claims disputes.

3. When You Can Fire Without Warnings

There are situations where immediate termination is reasonable and defensible:

1. Severe Misconduct – Theft, harassment, workplace violence, or safety violations.

2. Probationary Period Failures – If expectations were clearly outlined during onboarding and not met.

3. Clear Contractual Breach – The employee violated specific terms in their contract.

4. Position Elimination – While technically not performance-related, this can happen without warning in restructuring.

In these cases, the urgency and severity of the issue can justify skipping formal warnings — but documentation is still essential.

4. Why Warnings Are Usually the Smart Move

Even when not legally required, giving performance warnings offers major advantages:

• Protects Your Business Legally – Shows good faith effort to correct the problem.

• Encourages Improvement – Some employees can and will improve when given clear expectations.

• Sets a Positive Culture – Demonstrates fairness and transparency.

• Improves Morale Among Remaining Staff – Others see that performance issues are addressed fairly.

Case Example:
A marketing coordinator repeatedly missed deadlines. Instead of immediate termination, the owner issued a Performance Improvement Plan (PIP) with measurable goals. The employee improved, saving the cost of recruitment and training.

5. How to Document Poor Performance

If you decide to terminate — with or without warnings — strong documentation is your shield. Include:

1. Specific Examples – “Missed 3 client deadlines in Q2” is stronger than “Work quality is poor.”

2. Dates and Details – Keep a performance log.

3. Impact on Business – Show how it affects operations or revenue.

4. Employee Acknowledgment – Have them sign written warnings or meeting notes.

This documentation protects you in unemployment claims, EEOC investigations, and potential lawsuits.

6. The Role of Your Employee Handbook

Your employee handbook is your first line of defense. It should:

• Clearly state if your business is at-will.

• Outline your disciplinary process, but reserve the right to skip steps in severe cases.

• Detail expectations for performance and conduct.

If your handbook promises “three strikes,” you must follow it — or risk being accused of unfair treatment.

7. The Performance Improvement Plan (PIP) Approach

A PIP is a formal, time-bound document that:

• Identifies specific performance issues

• Lists measurable goals

• Provides resources or training

• Sets a review date

Even if you ultimately terminate, a PIP shows you acted reasonably — which can be invaluable if challenged.

8. Communicating a Termination Without Warnings

If you decide immediate termination is necessary:

• Be Direct but Professional – “We’ve decided to end your employment effective immediately due to continued performance issues that have impacted the business.”

• Avoid Emotional Language – Stick to facts.

• Have Final Pay Ready – Some states require final wages at termination.

• Retrieve Company Property – Laptops, keys, ID badges.

• Document the Conversation – Date, time, and who was present.

9. Common Employer Mistakes

Avoid these pitfalls:

• No Documentation – Hard to defend in court.

• Inconsistent Treatment – Treating one employee differently than others in similar situations.

• Emotional Decisions – Acting out of frustration rather than following process.

• Ignoring HR Advice – Always consult an HR professional or attorney for higher-risk cases.

10. Final Checklist Before Firing Without Warnings

✅ Reviewed state and local laws
✅ Checked employment contracts and handbook
✅ Documented performance issues
✅ Assessed risk of discrimination or retaliation claims
✅ Prepared final paycheck and termination letter
✅ Planned for operational continuity after departure

Conclusion: Proceed with Caution

Yes, in many cases you can legally fire an employee for poor performance without warnings. But just because you can, doesn’t always mean you should.

A thoughtful approach — balancing legal compliance, business needs, and ethical considerations — will protect your business, your reputation, and your team’s trust.

If there is any doubt in your mind, we highly recommend contacting an employment law attorney to seek additional guidance.

If you’re unsure how to navigate tricky termination decisions, Salsbury & Co. offers tailored HR consulting for small businesses — helping you manage performance issues, document properly, and handle terminations with confidence while staying compliant.

This Q&A does not constitute legal, accounting, or tax advice and

does not address state or local law.