Good documentation averts employee termination lawsuits

by on May 26, 2009 · 0 Comment POSTED IN: HR Info Center

Signed employee termination letters are key to winning lawsuits

A good employee termination letter must be signed or initialed or witnessed, by yourself, owner, manager, supervisor and the employee. Suppose the employee refuses to sign the employee termination letter. In that case get a witness, if you think you’re going to have a problem. Or go out and get a witness if a problem arises.

But you can also get sneaky. It’s not usually a good idea to play games, but if they start, don’t be afraid to finish. Remember the burden of proof is on the company; it’s on me as the supervisor. It’s not my word against the employee, it’s my word against my ability to prove I didn’t discriminate and that I did communicate. Having good documentation, especially an employee termination letter, can be critical to avoiding a lawsuit. If you meet with an employee and they refuse to sign, get it signed or initialed or witnessed. Get a witness in there, or try some of the sneaky stuff. But if you want good documentation that will help you avoid an employee termination lawsuit when firing an employee, be certain that your documents can prove that you communicated with the employee and did not discriminate.

Employees make the decisions
The goal of employee termination process is to salvage. The goal of good documentation or performance improvement program is to salvage. In reality you’re not actually starting the employee termination. In essence, what you actually do is give them their job. You’re looking at an employee and saying, “Here’s your job. You can quit, you can become productive, you can behave. You can fire yourself. It’s up to you to decide. I’m not going to decide for you.” What you’re really doing is giving that employee his or her job. That way, you can take that emotional fear of an employee termination off your back and avoid a lawsuit at the same time.

Don’t blame the law
Managers and supervisors tend to blame the law for our hesitation in an employee termination. But that’s not what the law says. The laws surrounding employee termination say, document, don’t use age or sex or race as an excuse. So it really comes down to emotionally they just don’t want to be the manager in an employee termination. It isn’t pleasant. And it’s not supposed to be; it’s tough to tell someone they’re out of a job. None of this stuff is complicated. It’s hard work and it’s constant. But that is what separates people who are good at leading and people who are not.

It’s true that many of your employees will be working on an at-will basis. They aren’t union or government employees. So in theory you’ve got the right to fire any employee you want, anytime you want. This is true; you can fire at will. But also remember that your goal should be to achieve harmony, productivity, and most of all, avoid potential lawsuits.

These are the edited remarks from the Rapid Learning Institute webinar:
“Yes, You Can Fire Without Fear! What Every Supervisor Needs to Know” hosted by Hunter Lott, Esq. on 2-22-07

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