Sufficient documentation for an employee termination

by on May 22, 2009 · 0 Comment POSTED IN: HR Info Center

Could you defend your employee termination on TV with your paperwork

Look at the paperwork the way that outsiders—judges, juries, arbitrators—will look at the “necessary documentation required” for a major event like an employee termination. They are going to look at the documents you give them and ask was the employee termination legit. They’re going to look to see if you gave the employee a reasonable chance to save their job before terminating them, or if you just tried to make them miserable until they quit.

Is your employee termination paperwork good enough for 60 Minutes?

How do we look at employee termination paperwork the way HR does without becoming human resources? How do we look at it like the attorney does? Think of “60 Minutes”. Would you be willing to go on “60 Minutes” with your employee termination documentation, with you’re your scenario and defend it as reasonable? This will really help you understand how HR, how the judge, the jury, corporate legal counsel, EEOC, the federal government, the state, human civil rights commissions – how they look at our documentation, how they look at this termination.

Employee termination documentation though becomes critical if you look at EEOC.gov and just start going through their website. Looking at the numbers, you’ll see they dropped over 60% of all their cases.
All the complaints that came in, all the charges that came in, over 60% of them were out and out dropped, mostly due to documentation. The supervisor and HR did their job with the employee temination. It had nothing to do with age or sex or race, had everything to do with communicating performance, behavior standards and the employee chose not to live up to those standards. They were given a reasonable chance to save their job, they chose not to.

The burden of proof
Start employee termination paperwork with knowing the burden of proof. In court, the burden of proof is on your company. Supervisors understand it’s not my word against my employees. It’s your word against the ability to prove you did not discriminate, to prove I did communicate, to prove I gave them a reasonable chance to save their job. Usually, it’s not the amount of employee termination documentation you have. It’s taking credit of and for the documentation. In order for the documentation to be valid, it’s got to be signed or initialed or witnessed, signed or initialed or witnessed by you and the owner, manager, supervisor, etc. and the employee. If the employee for whatever reason refuses to sign a document, then have a witness. If you’ve got HR, that’d be great, another supervisor, co-owner, manager witnessing the fact you communicated the information and the employee refused to sign. Yet another technique, on the documentation, typically there are little boxes that an employee can check to say if they agree or disagree. If they refuse to sign get them to check disagree and initial the document. Of course, you’re going to hope they agree. But technically, is that initial and check mark proof you communicated? Yes. Have them check the boxes. They check, “Disagree” and sign it, that’s still proof.

Document to salvage.
You know, here’s kind of where you are with an employee down at the bottom. And what you’re trying to do is salvage that employee. Document to salvage, do not document to prep for an eventual employee termination. If your intent is to fire no matter what—if you go to HR to start documenting an employee so you can get rid of him, then the outsider is going to ask, “Was your intent to get rid of Eric? You’d be willing to rehire Eric?” If you’ve already lost total faith in this employee, then the documentation is basically a sham because there’s no way you’re going to let him successfully save his job.

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 September 22, 2008

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