Need to Terminate an Employee? Document!

Unfortunately, there are lots of good reasons for terminating an employee. But be aware! What may appear to be an ironclad reason for dismissal still needs to be approached and executed with good planning. And the keys to your plan are documentation and communication.

When an incident occurs, make your written record of the incident as soon as possible. Keep your documentation to an accurate accounting of the job-related facts. Be specific and clear about the reason for dismissal.

This documentation will serve two important purposes: It is a record for the employee’s file. And it will be a key source of any written communication to the employee about the reason for the termination.

Communicating the specific reasons for dismissal to the employee makes it more difficult for the employee to later allege other discriminatory causes for the termination. (Example: If the discharged employee is a member of a legally protected group, you will need to be concerned that the employee may later claim discrimination as your real reason for discharge. Leaving the grounds for discharge vague and general runs the risk that a court will fail to see evidence that your decisions and actions were fair.)

Human resource professionals generally agree that proper documentation is essential and will work for you in defense of an unjust claim.

Now, to get even more specific. An employer’s specific documentation needs to begin long before the moment of termination, in most instances of a firing. The employer who wants the strongest possible defense against a potential charge of illegal discrimination or wrongful discharge will have written documentation of each significant incident and action leading up to a termination.

Especially helpful to an employer’s defense are written documents--such as warnings to the employee and performance reviews--that show the employer informed the employee of specific unacceptable behavior or performance... informed the employee of the required behavior or performance... and informed the employee of the consequences if the employee’s behavior does not change or performance does not improve.

Remember - these blog thoughts are meant to be accurate and helpful.  BUT, I am not an attorney!  For legal guidance regarding your specific situation, always consult with an attorney who is familiar with employment law and labor issues.  Don't know one?  Give us a call at PSK!

Comments

[Sarah]

I believe that documentation is vital, however, I think there may be a fine line between protecting yourself against litigation and being able to terminate someone because they cannot do the job accurately and effectively. Is there a general rule of thumb for how many chances to give an employee, especially if said employee is causing problems with the company running smoothly? Or how long should one document? I only ask, because I believe that Texas is an "At Will" employment state.