Documentation other than an employee termination letter is needed to prove your case
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Documentation other than an employee termination letter is needed to prove your case

You need to show more communication about the issues other than the employee termination letter

If you look at the agencies on the state level and federal level, and you look at companies that lose their lawsuits, you see constantly there’s lack of documentation beyond the employee termination letter. Or even worse, there’s no documentation. Document, document, document. It’s one thing that managers get so tired hearing. But those people in HR who keep asking where the documentation is, and keep nagging the managers to provide documentation before just jumping to the employee termination letter, they’re right.

The burden of proof is on the company
The burden of proof is on the company. Realize it’s not your word as the manager against the employee’s word. It’s your word against your ability to prove that you didn’t discriminate, to prove I did communicate with the employee beyond just handing them their employee termination letter. It’s all about proving that you gave an employee a reasonable chance to save their job. So the employee termination letter, as well as other documentation becomes critical. To stand up on its own, documentation has got to be signed or initialed or witnessed, by the owner, manager, supervisor and the employee. If the employee didn’t sign, it didn’t happen.

Now, what if they refuse to sign? If you think you’re going to have problems, get a witness, get a supervisor, call your manager, get someone to witness the fact that you communicated the information. Or you can get sneaky. It’s probably not the best idea to play games but if they’re going to start, there’s no reason you can’t finish. Managers owe it to good people to deal with the problem people. So get them to sign a message on the back stating that they refuse to sign the form. Or if there are agree and disagree boxes on the form, get the employee to check disagree and then sign it. They’ll do it. They get emotional. Do you need their full little name in the proper little blank? No. Is this proof that you communicated with the employee? Yes.

The goal of progressive discipline is to salvage
Do folks in management care? Yeah, they do care. The goal here is to salvage. When using progressive discipline, the goal here is to salvage if at all possible. You’re giving this employee a chance to save their job. They can choose to quit. They can choose not to save it, to fire themselves. But it’s going to be their call. The emotional burden, the legal burden, all goes on them. That’s where it belongs. So it’s their call to make. All you’re doing here is taking credit for it in the form of the various warning documents and ultimately the employee termination letter.

So hopefully they agree because then maybe you can salvage the employee. But if not, you now have hard copy documentation in the form of warnings and an employee termination letter. So when the outsider asks me if I gave him a reasonable chance to save his job, you can prove that you did. This is why HR gets so crazy about documentation. Now, if that works, that’s great. If it doesn’t work, when you go more formal in your coaching, in the write up, refer back to the verbal warnings.

You want to take credit for the good work you’ve done. But if you tell frontline supervisors to document every time you talk to someone, supervisors will soon stop talking to anyone. Actually, you need more communication out there, not less.

Edited remarks from the Rapid Learning Institute webinar: “Yes, You Can Fire Without Fear! What Every Supervisor Needs to Know” by Hunter Lott, Esq. on August 22, 2007

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