You fire an employee for poor performance. He says the termination was in retaliation for filing a race discrimination claim against the company. Will you have the employment documentation to back up your decision and avoid a costly lawsuit? 
Whether it’s a discrimination case, a retaliation claim, or both, the story is the same. It’s your word against the word of the employee—unless you have solid employment documentation to support the reasons for your decision. The Equal Employment Opportunity Commission, a judge, or the jury will want to examine your records of the steps and actions that led to the firing, discipline, or other adverse employment action.
Even if you have written documentation, it may not help if it hints at subjectivity or makes you seem unreasonable. While it’s always important to show what you did, it’s even more important that you be able to prove why you did it.
Here’s where good documentation comes in. But, what makes it work? What should you include in any write-up and what should you never say?
Join us on May 25, when Susan Fentin, a skilled employment attorney, will teach you practical tips on how to create written employment documentation for performance, conduct, and disciplinary issues in a way that’s objective and, most importantly, legally defensible.
As a preview, Fentin has supplied some frequently asked questions—and answers—to this HR topic.
We don’t have a form for employee discipline. We just write a memo to the file. Is this okay?
A—You are not legally required to have any particular format for issuing disciplinary notices, but it’s a good idea to have a form because then you can be sure that all the necessary information is provided.
A form also helps ensure that you have a consistent procedure for disciplining your employees. But if you do develop a form, be sure that your supervisors understand how important it is to have all the blanks on the form filled out.
Failure to fill out a form completely can imply that the supervisor was careless and unprofessional, which is not the impression you want to leave with a jury.
Can a supervisor have a “Secret Supervisor File”?
A—The answer to this question might depend on the law in your particular state. In Massachusetts and Connecticut, the definition of a personnel record is very broad and basically includes any piece of paper that an employer would review to make a decision about an employee’s employment.
So, supervisors can have “Secret Supervisor Files” in these states, but the bad news is that they are not secret: An employee may get to look at the information in that file. And even if your state’s personnel record law is not as broad as Massachusetts or Connecticut, you may want to use the information in that file to defend a charge of discrimination.
That means that, even if the document is designed to be in the supervisor’s secret file, it should be carefully drafted, clear, and unambiguous and free from any language that could imply that the supervisor was prejudiced against the employee based on their membership in a protected class.
We disciplined an employee and she refused to sign the disciplinary notice. Can we terminate her for this?
A—If the notice was a written warning or some other level of progressive discipline, and an employee refuses to sign the document, the supervisor should simply note that the employee refused to sign and date the notation.
I don’t recommend termination in this situation, because the employee is simply objecting to the form of discipline. But if the notice was a Performance Improvement Plan (PIP), and the employee’s signature is required to show that the employee is committed to making the changes necessary to improve her performance, and the employee refuses to sign, then termination is appropriate. Her refusal to sign a PIP shows that she is unwilling to make those changes, and that is a legitimate reason for separating from employment.
Join Susan Fentin for the live webinar, “Ironclad Employment Documentation: How to Legally Support Your Actions and Minimize Risks” on Thursday, May 25, 2017. Register today!