Paper trail: documenting an ideal employment termination.

• Author: O'Brien, Michael Patrick
• Position: Employment

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...