Documentation, level-headedness, focus and consistency are important aspects of a smooth firing process.
By Ben Young, Christie Vu and Gregory Boornazian
“Everyone knew that person wasn’t doing their job,” doesn’t stand up in court. What if the manager that initiated a termination is no longer with the company when a discrimination claim is made and there’s scarce documentation?
If it wasn’t documented, did it even happen?
Best intentions count for very little when there isn’t any proof to back up an employment termination decision. It doesn’t matter the size of the organization or the number of people who can provide testimony. There is ample room for dispute when it’s all hearsay. Even in today’s digital world, where an employee can be captured on screen being rude to customers, a company would struggle to justify such a termination without the proper misconduct documentation.
Trying to gather documentation after the fact is one of the hardest ways to defend a discrimination charge. If the documentation does not exist, it cannot retroactively be created.
Here are four best practices for employers to build a consistent firing process:
- Always submit something. Ideally, there is a designated form for firing managers to fill out. In circumstances where this form is unavailable or time does not permit, the firing manager should send a timestamped email or text message to the HR department to be included in the personnel files. In this case, function is more important than form, but ideally, employers should establish systems that support by-the-book employment practices.
- Cool down before documenting. Emotions should not play a role in the firing process. A clear head and cool temperament are preferred when documenting an employment incident, because plaintiffs’ attorneys can spin emotion into proof of bias.
- Focus on the specific performance issue. This is why written communication of the job expectations during the hiring process is so important. There should be no room for surprises. If an employee continues to not meet performance expectations, there is cause for termination. However, if either the expectations or the performance issues go undocumented, there is an open door to dispute the dismissal.
- Be consistent in the review process. If one employee receives more leniency, it could appear as favoritism and unfair employment practices. A good rule of thumb is that there is no such thing as overcommunication. The review process should tell a consistent story about the individual employee as well as the importance of employee performance across the organization. “They weren’t a good fit,” is not a legally appropriate cause for termination.
By following these four best practices, employers can ensure the firing process is a smooth and streamlined event. They will also be better protected against wrongful termination claims.
For more insight on today’s changing employment landscape, check out our eBook: Navigating the Complicated World of Hiring, Firing, & Retaining in 2023
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