Terminations and Documentation

Document, document, document. Isn’t that the rule? But doesn’t “at-will” mean you can fire an employee any time you want? In today’s HR Compliance Corner video blog, HR Daily Advisor editor Stephen Bruce looks at two termination scenarios that can equal big lawsuits for your company.

SB: This is Steve Bruce for the HR Daily Advisor. Today we’ve got two questions about terminations. First, Richard C. from Colorado has a question about documentation. He writes:

‘I always tell my line managers, document, document, document, but they say, my employees are at-will employees—why do I have to worry about documentation ? Can’t I just fire them?’

Richard, technically, your managers are right. If your employees are at will–basically that means there’s no contract governing the employment relationship–you can fire them at any time for any reason or for no reason. BUT–and there’s a big ‘but’ here–let’s look at what happens when you fire for no reason.

News flash–people don’t like being fired, and they are not going to blame themselves. They are going to come back with their lawyer and say, ‘You fired me because I’m a member of a protected class–because of my race, or my age, or my religious, or because I am a person with a disability.’

You’re going to go to court with your line manager and you’re going to be in an interesting position. You will have to convince the jury that, yes, your managers are so stupid that they fire people for no reason.

The jury’s not going to buy it, and that leaves them with one option—believing your ex-employee.

So, Richard, as the ad says, just because you can do it, doesn’t mean you should do it. Best practice demands a well-documented business reason for a termination.

And we’ve got a related question from Sandra P in Oregon. She says:
‘I have to fire a poor performer and think the easiest way to go about it is to say we have to let you go because of the economy. Poor performance is the actual reason, but why make the guy feel bad?’

Sandra, that poor guy may end up laughing all the way to the bank. Again, let’s look at what’s going to happen. You’re going to hire a replacement.

The former employee is going to come back with his or her lawyer, the same lawyer, and say the same thing: ‘You fired me because I’m a member of a protected class.’ Once again, you’re in court with a tricky situation. If you stick to the ‘it-was-because-of-the-economy’ story, people will think you are a liar because you replaced the person. If you try to explain that it was actually because of poor performance, you’re still a liar—either you were lying then or you’re lying now. You’ve lost all credibility, and you’ve lost the case.

So, Sandra when you have to fire, be honest with the employee, and do document the reasons. You don’t have to be brutal, but you do have to be honest.  Best of luck with all your HR challenges.

This is Steve Bruce for the HR Daily Advisor.