When a client calls me to ask for advice about firing an employee, the first question I always ask is, “What does the employee’s file look like?” I want to know if there exists a documented history of performance issues to justify the termination, and whether said issues are known and understood by the employee.
I ask these questions for two reasons:
- Can the employer objectively prove the misconduct to a judge or jury? Fact-finders want to see documentation, and if it’s lacking, they are more likely to believe that the misconduct was not bad enough to warrant documentation, or worse, that it did not occur. In either case, a judge or jury reaching this conclusion is bad news for an employer defending the termination in a lawsuit.
- Surprises cause bad feelings, which lead to lawsuits. If an employee has notice of the reasons causing the discharge, the employee is much less likely to sue. Sandbagged employees become angry ex-employees. You do not want angry ex-employees going to lawyers, especially when you lack the documentation to support the termination.