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Document Employee Behavior Today to Avoid Lawsuits Tomorrow

by Eric B. Topel

Charles “Slip” Shod has been employed by your company for more than two years, during which time you have received repeated complaints from vendors about his performance.

In your capacity as a member of human resources, you begin reviewing the other matters on which Slip has been working and determine that his poor performance is beginning to cost the company clients. After extensive thought and consultation with Slip’s supervisors, you determine that he must be fired.

Unfortunately, Slip has consistently received “satisfactory” marks in his performance evaluations and has never been counseled regarding his poor performance. Further, the day before his planned dismissal, he informs his supervisor that he’s suffering from a disability for which he has been receiving medical attention and taking prescription medication.

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You’re now left with a dilemma — to fire or not to fire?
Employers frequently are confronted with the dilemma of having to choose between the unsavory options of continuing to employ poorly performing employees or risking being at the wrong end of a large judgment in favor of the same employees, who look great, or at least “satisfactory,” in the company’s personnel files.

Below are several steps managers, supervisors, and HR personnel alike should consider to minimize the likelihood that you have to face that dilemma. Although many of these suggestions are basic, it never hurts to be reminded.

Document daily
One of the easiest and most effective ways your company may protect itself from legal liability, or from even being sued in the first place, is to consistently document an employee’s poor performance.

Given how busy and hectic supervisors’ and HR professionals’ schedules may be, it’s understandable that the last thing you want to do each day is document the performance of an underperforming employee.

Nevertheless, it’s vital that you take the time to document an employee’s poor performance as well as any discussions you had with the employee concerning performance deficiencies or any conflicts involving the employee.

The documentation needn’t be a treatise. In fact, a simple memo to the employee’s personnel file or a notation on your calendar may suffice. What’s important is that the memo or notation be dated, contain the identity of its drafter, and accurately and objectively depict what has occurred.

If you think that’s a waste of time, just imagine yourself as a juror sitting down to decide which one of two people you have never met is telling the truth.

If Slip has testified, “I made some mistakes but no more than anyone else,” would you be more impressed by someone who says, “According to my contemporaneous records, Slip made mistakes on these 343 invoices,” or someone who says, “I know Slip was rated satisfactory, but he really did make a lot of mistakes”?

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Don’t just document the bad performers
Don’t single out people you want to get rid of. Be sure to document performance-related or other issues for all employees. It doesn’t help you much when you single someone out because he’s a poor performer and then the person turns around and argues that your assessment is just another act of discrimination.

When Slip testifies at trial that Suzy was late a lot, too, you can scream, “Liar!” and then, in response to cross-examination, help prove his case by stating, “Yes, other people were late, and yes, Slip was the only person who I kept records on, and yes, he was the only disabled person in the department.”

Alternatively, you could blow Slip’s case out of the water by saying, “Suzy was late 10 times but never by more than two minutes. Slip was late 20 times, and on 19 of those occasions, he was over 20 minutes late. There’s no comparison.” Needless to say, the latter type of response tends to be more effective.

Just the facts, ma’am
Personality conflicts frequently arise in the workplace, particularly with regard to people whose laziness or indifference ends up making other people have to do or correct the work that the poor performer was supposed to do.

Your justifiable frustration with an employee’s attitude, however, has no place in your documentation of that employee’s performance. The key is to stick to the facts and be objective in documenting the employee’s actual performance, regardless of whether he recently caused you frustration and anguish.

When Slip is at trial, you won’t be able to recognize that nice, conscientious, well-groomed superstar that his lawyer is presenting to the jurors. If the facts don’t let jurors reach the opposite conclusion that he’s really a jerk, calling him one won’t do it. It will only play into his attempt to portray you as the malicious monster his lawyer claims you to be.

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Provide periodic feedback
In addition to properly documenting an employee’s poor performance, your company should provide periodic feedback to its employees rather than merely waiting for the annual review or performance evaluations.

By providing frequent feedback to employees, especially those who are underperforming, you may be able to offer guidance to assist an employee in improving her performance. That may minimize the need to discipline or fire the employee in the future.

In addition, by conducting periodic assessments, you’ll have a more thorough and complete review of an employee’s performance in the event it becomes an issue before the end of the year.

In that regard, periodic feedback also can help you give more balanced annual reviews. All too often, an employee performs well all year only to perform poorly right before he’s evaluated.

While such poor performance, and any trends, definitely should be documented, it’s unfair to both the employee as well as the company if he receives a 2 out of 5 based solely on one poor assignment or one bad month.

Avoid ‘Lake Wobegone’ evaluations
In Garrison Keiler’s fictional town of Lake Wobegone, all the children are “above average.” That endearing attitude that Lake Wobegone’s residents have toward their children isn’t so endearing when it creeps into your performance evaluations, however.

Frequently, managers, out of laziness or fear of confrontation, give employees higher scores then their performance warrants. While giving an underperforming employee a score of 4 out of 5 may serve to minimize any harm to the employee’s ego, such a grade may come back to haunt your company when it later fires the employee for poor performance.

The key is fairness, objectivity, and accuracy. As a member of management or HR, you should review evaluations to ensure that they’re thoroughly and properly filled out and that they accurately reflect an employee’s job performance both as an absolute measure and relative to the employee’s peers.

Not everyone can “exceed expectations.”
The evaluating manager may get grumpy with you, but that’s far better than having an employee’s lawyer ask him, “Could you run that by me again? Is it your testimony that this person whom you personally evaluated as having performed satisfactorily over a period of seven years was really the worst employee that your company ever had?”

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Act promptly
Once you have properly, objectively, and thoroughly assessed an employee’s performance, it’s essential that you act promptly in taking the appropriate action against a poorly performing employee.

By delaying, your company will find it increasingly difficult to explain to a jury why it “had” to fire an employee who consistently underperformed for an extended period of time. You also increase the risk that your decision may be attributed to some factor other than a legitimate business reason.

It isn’t convincing to tell a jury that an employee was a clear and present danger to your company if he was allowed to hang around for 12 years. Jurors may not find your testimony convincing when you tell them, “I know he never had medical issues before, but that had nothing to do with it; we wanted to fire him for years and just finally had enough.”

Bottom line
Evaluating, disciplining, and firing employees is never fun. Nevertheless, your managers, supervisors, and HR personnel must be mindful that the amount of time put in the process can be paid back in multiples when compared to the time spent in litigation or in picking up the slack for a poor performer.