March 6, 2014

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Documenting an Ideal Employment Termination

By Michael Patrick O'Brien

March 6, 2014

One of the most common HR problems all employers eventually experience is the termination of an employee. A business client recently asked me to provide three quick tips to minimize risk in an employment termination. I wrote down the summary and read it again after I sent it. I liked it because it was clear and concise, results we lawyers do not always attain. So I thought I might share it with you. Here it is.

To put yourself in the best position to defend a possible lawsuit if you do fire someone, keep in mind these three goals: (1) consistency (i.e. if the person sues you after termination, he/she will not be able to identify others who engaged in similarly egregious behavior and were not fired); (2) job-relatedness and fairness (make sure you get his/her side of the story and rest the decision on clearly established facts and legitimate business reasons—rather than on anger or bias about other things—after an appropriate investigation); and (3) documentation—clearly, carefully and accurately document what you did and decided and why.

On that third point ... what constitutes good documentation? Below is an outline of what an ideal termination (for poor job performance) should look like once completed. Each step identifies what an employer should have done (and when) to properly document an employment relationship that ultimately resulted in discharge.

Hire date: Employee gets a written job description giving fair notice of his/her job duties and performance expectations and goals.

90 days (about) after hire: Supervisor checks in with employee after “orientation” period to verify adequate performance and good job fit. Thereafter, supervisor provides regular oversight, coaching, etc.

First sign of serious problems: Apart from regular coaching, at this point there should be a discussion with the employee. Document the discussion with a note to file or email. Depending on seriousness, escalate to human resources and perhaps discipline. Early HR involvement can hasten a resolution and minimize risks.

Additional problems: Further discussions and coaching, HR involvement and perhaps discipline, including written warnings depending on how serious the problem. Repeat clear objectives and measurements of the same.

Annual (or regular) performance review: Conduct a truthful and accurate review of employee’s performance during full relevant period (e.g., one year). Note if problems exist and include discussion of relevant job actions (e.g. warnings or discipline, successes, etc. during the relevant review period).

Ongoing problems: Escalate discipline (probation, last-chance notice). Document nature of problem, how it can be fixed, a clear timetable for doing so and consequences of failure to do so (such as discharge). Make sure you consider employee’s side of story but do not engage in “debates” when employee disagrees.

Trigger for discharge: There should be some event that moves the situation toward termination (e.g., expiration of last-chance time period without needed improvement, additional major mistake, misconduct, etc.). Beware of subjective conclusions (e.g., “He/she just doesn’t fit in!”) and instead identify the underlying objective facts leading to any particular conclusions.

Discharge: Discharge should flow logically from the documentation of expectations given and problems noted (i.e. the historical record outlined above). The main goal of the whole process is that anyone who might try to second guess you should conclude there was clear explanation of expectations, notice of problems, a documented chance to improve before discharge and failure to improve. HR involvement should ensure company-wide consistency (i.e. that various departments use the same type of discipline for the same types of offenses) and that the written record supports the termination decision.

Discharge letter or memo to file: Document what happened and why in clear terms, with as many words as needed but with as few words as possible. This can be done in memo to the file (not given to the employee). Remember, however, this will be Exhibit A in any post-termination dispute, so do it properly. You need not write the great American novel, but spell words correctly, use correct grammar and write in plain English so others outside your company can understand.

No one ever really wants to fire an employee. It is difficult, emotional and unpleasant, and turnover can cost a business both money and productivity. However, sometimes an employer has no choice but to terminate and sometimes it leads to lawsuits. Good documentation is one of the best tools available to an employer to manage the legal risks that come with a termination. An effective system for documenting employment performance and problems will help guide a company as it manages its resources that are human and also will create the historical record and evidence that an employer can use to defend itself in an employment lawsuit.

Michael Patrick O’Brien is a nationally recognized employment law attorney practicing with the law firm of Jones Waldo in Salt Lake City.


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