Tag Archives: employment documentation

To Terminate or Not

Many employers are very averse to terminating employees. This is a good thing: we all need to earn a living and depriving someone of their livelihood, particularly in this economy, is not something to be taken lightly.   

What I see a lot of, however, is employers keeping employees who are nonperforming, toxic, or both (they often go together) well beyond their pull date.  So long as the employee doesn’t steal or punch someone out, the employer holds off on termination.  There are a number of reasons for this, most of which come down to fear of a lawsuit.

Lawsuits are not good for employers.  They drain money, time, and energy.  If an employee was terminated improperly, a court may order the person reinstated.  Employment lawyers, therefore, rightly advise clients to get their ducks in a row before firing someone.  This consists primarily of documentation of the problems and efforts to work with the employee on remedying them.

So what if the employee is a huge problem but the documentation is weak?  (See my earlier post on documentation.)  Should an employer always take the time to dot all the i’s and cross all the t’s before terminating the employee?  The answer requires analysis of a number of factors:

  1. How bad is the behavior or performance?  Obviously, really bad requires less documentation.
  2. Is there any reason to believe that the offending employee truly hasn’t been given notice and an opportunity to correct his or her ways?  If so, this notice and opportunity needs to be given.  (Do not, however, be derailed by bogus employee protestations that they were unaware of the problems – particularly in situations where  you know that management spoke with the employee on a number of occasions.)
  3. Is there something other than termination that might resolve the issues, e.g., a transfer to a different location or workgroup, a different job, a different supervisor, etc.?  If the employee is represented by a union, his or her union rep may be able to help with this.
  4. Does the employee acknowledge there is a problem? If not, it will be impossible to fix the situation short of termination.
  5. What impact is the offending employee having on the work group?  As I’ve discussed in an earlier post, a toxic employee can have a devastating effect on morale and productivity.  If nothing else, the fact that management does not seem to be addressing the problem can itself wreak havoc in a workplace.
  6. What impact is the offending employee having on the bottom line?  If the employee is not bringing in money or is costing the employer money, that is a valid factor to be considered.
  7. Does the employer have Employment Practices Liability Insurance (EPLI)?  This is an insurance product that covers businesses against claims by workers that their legal rights as employees have been violated.  If an employer lacks insurance and could not afford defense costs even in a frivolous case, the calculus becomes more difficult.

Finally, there is the overall question: which is worse: a lawsuit or keeping this person around?  If the answer is keeping them around, termination is in order.  And if litigation results, so be it.

 Are there other considerations that should go into this type of termination decision?  ~Amy Stephson

Documentation: The Good, the Bad, The Ugly

Those of us in employment law and human resources think a lot about documentation.  Some of it has to do with potential legal liability and some has to do with just recording what happened or was decided, for clarity and future reference.  Like the “many moods, the many shades, the many sides of George Costanza,” of Seinfeld fame,  there are many sides to documentation. Herewith a few of my thoughts:

Email — or “evidence mail” as some lawyers say — has become king. It’s so convenient and easy to use, that everyone in the workplace uses it.  And at the same time creates a written record of what’s going on, what employees are saying, what managers are doing, and so on.  Lawyers love email.  Employers and employees may love it less if it comes back to haunt them.

Documentation is not necessarily accurate.  After conducting many investigations in which complainants provide extensive, detailed written documentation of events, sometimes covering several years, I’ve come to a tentative conclusion: It’s often not the truth. I’m talking here about page upon page, usually single-spaced, documents rehearsing in detail often-tiny interactions and events, many of which don’t quite make sense.  You read this type of documentation and often (1) wonder how the person remembers all this; (2) have a hard time staying awake; and (3) question why anyone would do what the complainant alleges the wrongdoer did.

Documentation is best created contemporaneously.  The gold standard is an account of an event or conversation written while or shortly after it occurred.  The closer to the event, the more credibility a document has because inaccurate memory has less opportunity to intervene.  The documentation need not be long or super-detailed, but it must include the key information (“I told X she would be terminated if Y happened again.”) To be really gold-plated, the document should indicate when it was written, who wrote it,  and when the event occurred.

But it’s OK to create documentation after the fact.  You have to be honest about when it was created, but a document prepared based on memory, review of calendars and emails, and miscellaneous other reminders is better than nothing.  Some will say, “If it’s not written down, it didn’t happen,” but actually it’s all evidence, of varying credibility. So a coherent, after-the -fact documentation that indicates its sources can be better than nothing.

What are your reflections on documentation in the workplace?  ~Amy Stephson