Document every action you take on the way to an employee termination
You want to document everything before you resort to firing an employee. You don’t want to wait for a once a year evaluation. It might not be an enjoyable task, but don’t avoid an employee termination just because it’s unpleasant. Waiting and seeing if the problem gets better on its own normally just compounds the problem, and could lead to a wrongful employee termination lawsuit.
And in addition, if you ignore it, co-employees, employees who see the bad behavior of a colleague may start to resent that the other employee seems to be getting away with something. And you maybe creating a morale problem that otherwise wouldn’t exist. By disciplining or the employee termination, as soon as the problem arises, you’ll dictate the course of the proceedings for existing and subsequent problem employees.
By confronting an employee, things may improve immediately, which should be your goal. Fixing a problem with an existing employee is often a good option since finding new talent can be expensive, and it bypasses wrongful employment termination issues altogether. Even if the problems don’t improve, preparing the appropriate documentation will ultimately make it easier in case you end up firing an employee.
It’s a good idea to involve HR when disciplining or an employee termination. And of course, if you’re in HR, you know you want to be involved when employees are being disciplined. Doing this, again, helps to add a layer of consistency and thus reduces the risk of disparate treatment claims-alleging that wrongful employee termination took place based on membership in a protected category.
If you’re going to file disciplinary documents, put it in writing. Even if it’s just an oral warning or oral counseling, you should make a note to the file because if you ultimately need to show that you did give the oral warning, so if you’re accused of wrongful employee termination you have a record of every step you took on the way to firing that employee.
Employee termination letters and paperwork
Be as specific as you possibly can. People aren’t going to respond as effectively if you just give a generalized, “Gee, you’re having this problem”. But specifics will help someone actually correct their mistakes or actions.
Remind the person in the document that everyone’s employed at-will because you don’t want to be creating some kind of contract with someone. For example, if you’re doing a performance improvement plan and you say, “You’re on this plan for 30 days. And then after that hopefully everything will be taken care of.” You still want to include at-will language because you don’t want the person to think that they can’t be fired after those 30 days.
Have employees sign an acknowledgement when they’re being disciplined or warned about an employment policy for example.
If you get the employee to sign the acknowledgement, then if there’s a subsequent infraction that results in firing that employee, you have documentation to prove that the employee was specifically warned and on notice but chose to continue engaging in the prohibited activity.
If the employee refuses to sign the document, you can write down employee refused to sign and ask the employee to sign that, which essentially gets you the record you need for firing that employee. You can also have a witness sign that the employee received the notice.
Edited remarks from the Rapid Learning Institute webinar “Effective Termination Techniques -How to Document Terminations So You Won’t Lose a Lawsuit” by Alyssa Senzel October 24, 2007
Subscribe to HR Info Center
Get the latest research on workplace learning with weekly posts delivered to your inbox