By Jennifer Leahy | HRTools.com Business Writer
Although documenting an employee’s poor performance may not be required by law, creating a comprehensive “paper trail” prior to terminating at-will employees can provide invaluable protection against future legal problems.
“Documentation is key. You have to have a paper trail. If it isn’t written down it didn’t happen,” says Jack Reid, vice president of Human Resources for Pexco, a plastics manufacturer with seven facilities in the United States.
Reid says adhering to a policy of being firm, fair and consistent in employee relations will protect the company and manager against potential grievances.
First, examine your company’s policies and procedures. Does the employee handbook specifically outline unacceptable actions? If not, it may be time for an update. It’s not ideal to discipline or fire an employee for spending several hours each day on a social media site when the employee has not been specifically told that such behavior is unacceptable. Whether you have an extensive employee manual or a few pages stapled together, it’s imperative that employees receive a copy and sign a document indicating that they have received and read the written policies.
Prior to initiating any action toward terminating an employee, check the employee’s personnel file. Are there notations of infractions? Have specific violations of company policy been documented? If the file contains glowing evaluations and the individual has received regular salary increases, it is more difficult to justify termination if legal issues arise. The file should contain dates and times of violations or specific examples of sub-par performance.
Most importantly, document everything extensively. Noting in a file that there are persistent problems with tardiness is not sufficient. It’s critical that there is a record of dates and times an employee was tardy and notations of when they were sanctioned by a supervisor. If the person did not meet performance goals, the specific goal and how it was expressed to the employee as well as their failure to meet the expectation should be thoroughly documented.
“Start with a verbal warning, then a written warning and then a final warning,” Reid says, adding that all warnings should include a supervisor who also serves as a witness.
The employee should be asked to sign written warnings. Refusal to do so should also be noted, Reid added.
Federal laws prohibit employment discrimination based on certain “protected classes,” including race, sex (including pregnancy), religion, national origin, age (40 or older) and disability. However, employers who opt to follow a rigid and progressive discipline system applied to all employees will leave no room for claims of discrimination.
“Unfortunately, the way things are today, as litigious as they are, the second you become inconsistent you are opening yourself up to problems,” Reid says.
Certain violations do call for immediate termination, acts Reid refers to as “mortal sins.”
Such “sins” vary by industry and company but may include theft, physical violence, issuance of threats, or corporate espionage. They should be stated in the employee handbook and details should be carefully documented at the time of termination.
Though the U.S. Equal Employment Opportunity Commission (EEOC) requires that employers keep all personnel or employment records for one year from the date of termination, Reid suggests keeping the documents for at least three years.
“If someone does launch a complaint or file a lawsuit the first thing they will ask for is records of terminations. If they are consistent and fair there is no ground for complaint,” he says.
Legal Disclaimer
The information contained in this document is for general, informational purposes only and is not intended to be legal advice. This information is not a substitute for the guidance of a professional and should not be relied upon in reference to any specific situation without first seeking the advice of a qualified HR professional and/or legal counsel regarding applicable federal, state or local laws. HRTools, Insperity and their respective employees make no warranties, express or implied, and make no judgments regarding the accuracy of this content and/or its applicability to a specific situation. A reference or link to another website is not an endorsement of that site or service.