In this 4th installment of our Firing 101 series, Stephen Bruce illustrates the many ways you can use documentation to justify a termination and emphasized the importance of documentation that is detailed, accurate, and current.
SB: This is Steve Bruce for the HR Daily Advisor. This if the fourth video in our Firing 101 series—Is your documentation in order?
To ensure a legally secure termination, you should have complete documentation to back up your action. Don’t fall into the trap of “it’s employment-at-will—I don’t need a reason or any documentation.” That might be technically true, but what are you going to do when the employee sues over discrimination—Are you going to tell the jury, well, I ah fired this employee for no reason?
When there’s no record of misbehavior or unsatisfactory performance, or no record of having talked to the employee about it, it’s hard to suggest that misbehavior was a problem, especially if there is a record of “satisfactory” performance ratings.
Here is what your employee’s attorney will be asking: “You took the time and trouble to make a written record of the satisfactory behavior every six months—the performance appraisal—and you’re trying to tell us that there was behavior that was bad enough to warrant termination and you didn’t even take the time to make a record of it? There’s no good answer.
Documentation may be used to prove that an employee:
–Was given a warning.
–Committed certain acts at certain times.
–Knew of a certain rule or expectation.
–Received particular training.
–Received a copy of the employee handbook.
–Broke company rules at certain times and dates.
–Received certain levels of warnings and discipline.
–Was placed on some type of probationary status.
–Knew what he or she was expected to do in response.
–Was aware of the consequences if he or she failed to respond or improve.
In addition, for documentation to be most effective, it should be detailed, accurate, and current.
For example, a note such as “discussed Joe’s performance with him” is too vague. List specific instances with specific recommendations for improvement. Be sure to note the dates, times, places, and witnesses, and be sure the document is dated and signed.
Be sure that all that you write is accurate. If any part of your document is proven wrong, the validity of the entire document is called into question.
Write your memo at the time the event occurs, and be sure to date it. Such “contemporaneous” records carry much more weight than those created after the fact, which often appear more like fabrication than documentation.
Will your documents be accepted in court? If you can show that your documentation practice is consistent and reliable, then your written word, recorded at the time of an action, is likely to be accepted as true. Never falsify, backdate, or alter any document. First of all, it is not likely that you can get away with it; second, the penalties will be severe; and third, you’re likely to lose your case. In court, once you are proven to have lied once, your credibility is gone.
Finally don’t try to build a ‘paper case’ When managers want to fire an employee, someone may suggest that you start “building a file” against the problem employee by documenting everything the employee does wrong. Unfortunately, there’s a dangerous trap here. If you focus on documenting only one employee’s shortcomings, or if you document trivial infractions, especially since you don’t do that for other employees, it will certainly appear that the employee was singled out for this treatment, and that you were “out to get” the employee. That never plays well with the jury.
Be sure to view the next video in the Firing 101 series, Let a Group Decide.
For help with terminations and all your HR challenges, we recommend HR.BLR.com. This is Steve Bruce for the HR Daily Advisor.