The recession means that corporate litigators have been especially busy in 2009, with employee termination challenges among the most active sectors.

Wholesale layoffs are expected to reverse a 15-year trend of declining termination lawsuits in the U.S.

In theory, employment law seems stacked in favor of many private employers who want to terminate a worker. Almost every state has some form of “at will” statute, which allows most nonunionized, private employers to fire any employee at any time, as long as no discrimination is involved.

In practice, “at-will” termination is the most difficult to execute because the process typically doesn’t provide the employee a formal notice period, qualified labor-law representation, or an opportunity to respond, as compared to union and government terminations, said Michelle Singletary, a Maryland-based human resources specialist for the United States Navy Naval Criminal Investigative Services. She previously worked in private enterprise and as national representative for the American Federation of Government Employees, AFL-CIO.

“Private industry terminations are much more devastating. I’ve experienced instances where employees could not handle the termination, and it has had terrible results,” Singletary said.

There’s no guaranteed formula to prevent a disgruntled former employee from filing a lawsuit. Labor lawyers and human resource managers don’t always agree on the best way to handle a termination.

For example, some advise to get it over early in the week to prevent the manager’s prolonged distraction, while others recommend an employee be terminated late on a Friday to minimize the impact in the office.

Most advice when firing an employee is not "one size fits all," said Charles Faruki, managing partner at Dayton, Ohio-based Faruki Ireland & Cox PLL.

“The way you fire someone depends on the type of employee that person was and what type of information he or she had come in contact with,” Faruki said.

He said the most important thing to keep in mind is to have an exit interview, make sure the employee has given back anything in his or her possession, and make sure you have documentation.

He also advises that when you fire someone, check their file. Make sure there are no outstanding discrimination claims, and check to see if performance of that employee has been documented.

While advice varies, there is general agreement on mistakes managers commonly make that leave the door open to hurt feelings, ill-will among remaining employees, hurt reputations, and lawsuits. Those include:

• Beating around the bush. It is best to get straight to the point and let the employee know immediately that he or she is being terminated and the reason for it, Singletary said. “It is best to have the meeting with the employee in person, with another manager present,” she said.
• Poor documentation. A firing should never be a surprise to an employee, said Jay Hargis, a professor of human resources at Suffolk University in Boston. It won’t be if your company has the right paperwork. The paperwork should include clearly stated termination policies outlined in the employee handbook, regular formal performance evaluations, and a personnel file that reflects progressive efforts to correct substandard behavior.
• Withholding resources. Employees should be given information on what their rights of appeal may be, according to Singletary. It also is important to put them in touch with human resources so they can obtain information about the continuation of their benefits, if applicable, she said. “People who survive the layoff need to know that their former co-workers and teammates are well taken care of,” Hargis added.
• Unnecessary roughness. It is not necessary to embarrass an employee when terminating him or her, experts said. It’s not necessary to tell other employees that the employee was terminated—say only that the person is no longer with the company, and provide the necessary new contact information for all concerned. Allow the employee to remove personal belongings in private. Don’t escort the employee out of the building unless absolutely necessary. One instance in which it might be necessary is if the employee has extremely confidential company information at his or her car or home.
• Ignoring the long term. As the economy continues to be challenging, many employers are turning to layoffs as a way to cut costs. But they need to be careful, Hargis said.

“Once word hits the street that you’ve done layoffs, your talent pipeline will shut down and you run the risk of hurting your employment brand,” Hargis said.

Mary Beth Lehman contributed to this article.