Ask this question: “Would I use this document defend my employment termination decision on TV”
A great way to look at whether or not your documentation is sufficient to justify employment termination is to think about “60 Minutes”. Think about how you’re documentation and how your reasons for employment termination will look and sound on “60 Minutes”. A lot of times you’ll ask if employment termination is OK based on the documentation, and oftentimes the answer will be “Well, it depends”, which drives most managers nuts.
HR exists in the gray area. HR realizes that the outsider watching your company or the folks on “60 Minutes” are going to ask after the employment termination , “Did you give him/her a reasonable chance to save their job and can you prove it?”
What’s reasonable with an employment termination?
Any time you see reasonable in employment practices, hiring, the Americans with Disabilities Act, reasonable accommodation, sexual harassment – what would a reasonable man, reasonable woman tolerate given the work environment? Would a judge, jury or arbitrator look at your documentation and consider terminating the employee justified? Again, consider how it would look on “60 Minutes”.
Keep principle employment termination documents.
Remember the burden of proof is on you and your company. Your word against the employee’s isn’t what’s important; it’s about your word against proving you communicated and provided reasonable chance to save their job before terminating an employee. So in order for the employee termination letter to stand up, it must be signed or initialed or witnessed by me, owner, manager, supervisor and the employee. If the employee doesn’t sign, it didn’t happen. Now, of course there’s the question of what happens if an employee refuses to sign the documentation.
In that case, get a witness, the supervisor, co-owner, and manager, someone at my level or above witnessing the fact I communicated the information and the employee refused to sign. Failing that, you can also get sneaky. Getting tricky with employees isn’t something you should do regularly, but if they start acting up, then it’s fair for you to do so as well. If they refuse to sign a form and get upset about it, get them to sign a statement saying they refuse to sign the employment termination documentation. That way they have proven that you communicated with them. Also, if there are boxes to check off whether the employee agrees or disagrees and a spot to initial, get them to sign that they disagree with the evaluation or improvement plan or whatever the document is. So long as you can prove you have communicated, the burden of proof will be fulfilled. Should you care that the employee disagreed? Technically, no. But in reality, yes, you should. The goal of communication is to salvage employees. You should be building documentation in an attempt to salvage, not to fire. An outsider will ask if terminating the employee was the outcome you had in mind. If you’re not willing to consider rehiring them, and you were going to fire anyway, just terminate them for at-will and take your chances.
Try to catch issues early in the employment termination process.
If you can catch them early, you’re not only buying protection legally, you’re taking pressure of terminating an employee off your back as a manager. Say to the employee, “Here. Here’s your job. You decide.” You can quit, become productive, behave or fire themselves. “It’s up to you to decide. I’m not going to do this to you.” Literally, you take the emotional pressure off our back. I’m giving them their job, they can decide. Instead of your employment termination, the employee is terminating himself if he or she so chooses.
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 April 2, 2008
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