We've all heard horror stories about employee terminations that have gone wrong. In 2015 alone, there were over 89,000 charges filed with the Equal Employment Opportunity Commission (EEOC) and more than $525 million awarded to victims of discrimination (https://www.eeoc.gov/eeoc/newsroom/release/2-11-16.cfm). It pays to be cautious and fully document all of the steps in termination before finalizing the deal. Although almost all states are "at-will," employers are still at risk for a termination decision being perceived as something personal vs job-related.
That's what makes documentation every employer's best friend. The kind of best friend that's needy requires a lot of your time and attention, but in the end will always be there for you in your toughest time of need. While documenting every single interaction you have with your employees is not necessary, it is a great practice to document the moments that could be perceived unfavorably by your employees. Now you might be asking, why does this even matter or how does this help me. And we get it, we as humans need to know that what we are doing now is going to have some positive effect on our future. So here's a summary in a few easy steps.
What to document:
Anything performance-related and leading up to the dismissal of the employee should be written down or captured in some form. This can include coaching discussions with the employee, disciplinary action that was taken, and statements from managers who have been involved in dialogue with the employee. If an employee's performance improves, and you never have to refer back to the documented performance discussions, that's great! That's the best case scenario. But if things continue to go south, you'll be glad to have these in your back pocket.
How to properly document:
It's all in the details. When writing steps that were taken with the employee, be sure to be specific about the conversation. This does not mean you have to write a statement "she said…" he said…" commentary. Make sure that you list the dates that discussions with the employee happened and what expectations were communicated to the employee. Signatures from the employee are a great way to prove that the discussion occurred, but if your employee doesn't sign, have a witness attest that the employee was provided the information and refused to sign. And remember, it's a lot easier and more accurate to document as you go, then to try to recall what happened several months prior, and risk being inaccurate.
An employer that does not document the reasons for terminating an employee or who does not have enough documentation in place has a higher risk for all types of claims; unemployment, discrimination, retaliation and pretty much any other claim an employee and their attorney can think of. Having a record that outlines the steps that you took, the discussions you had, and the expectations you discussed can help when an employee files a claim.
Our favorite question to ask when discussing termination is "what kind of documentation do you have regarding XYZ." Over the years, we've come to love the needy best friend known as documentation. We've witnessed firsthand that having documentation, when done properly, can help reduce an employer's risk. We know that with some time and a little bit of effort you'll come to appreciate the benefits of your new best friend, documentation.
We love HR so you can love what you do. simplyHR is an HR consulting firm located in Fort Collins, CO providing partnerships to companies in all 50 states. Our goal at simplyHR is to provide training, education, partnership, and resources to make Human Resources simple for small businesses.
The content of this website provides practical and HR best practice information and is not legal advice. simplyHR LLC does not provide legal advice or other professional services. While every effort is made to provide accurate and current information, laws change regularly and may vary depending on the state and/or the municipality your business operates in. The information provided from simplyHR is provided for informational purposes and is not a substitute for legal advice or your professional judgement. You should review applicable federal, state and municipality laws in your jurisdiction and consult with legal counsel as you deem necessary.