Human Resources News & Insights

ABCs of documentation: Making an airtight case for termination

What’s the one thing companies need to have before they decide to part ways with an errant employee? You know the answer: Airtight documentation. Here are some tips on establishing a paper trail you can depend on as protection against legal backlash.

There’s just no overstating the importance of documentation when a company embarks on the process of firing an employee.

Documentation is the written record of how a company came to the termination decision. It offers a chronology of what the employee did, how the manager responded, and when.

Done correctly, it provides a clear road map of how both employee and employer made their way to the eventual destination – the employee’s termination.

Documentation is also the foundation of a company’s defense, should the employee bring suit. It’s proof that an employer didn’t act arbitrarily.

Oftentimes, a good documentary record can short-stop a lawsuit on its own. An employee’s attorney, presented with a thorough and thoughtful written record, may well decide that filing suit just isn’t worth it.

And if a case does make it to court, an employer is better positioned to obtain a favorable outcome if the jury’s presented with written proof that the employer engaged in ongoing communications about performance problems and set clear expectations for the employee.

Handling verbal warnings

Managers are often confused about how they handle informal verbal warnings to employees.

It’s a bit of a judgment call. A non-specific, “Bob, you need to dial up your attention to detail” probably isn’t worth the time it’d take to make a written record.

But the following statement probably is: “Bob, today is the third day in a row you forgot to put the extra washer on the thingamajig. You know that step’s been added to the assembly process, and I’ve mentioned it to you several times. I’m going to be monitoring your attention to detail, and if you continue to make the same mistake, I may have to move on to the next disciplinary step.”

After that encounter, it makes sense for the manager to write down — as precisely as possible — exactly what he or she told the employee, date it and put it in the worker’s file. At this point, it’s probably not necessary to get the employee to sign off on the document.

If the employee then fails to rise to improve, the manager then begins the formal progressive discipline process.

And in the first writeup, the manager should refer to earlier verbal coaching: “As we’ve discussed on several occasions, your attention to detail … ”

If the employee claims he wasn’t given prior notice that his performance or behavior was unacceptable, the manager has the earlier notes to fall back on.

The nuts and bolts of paperwork

There’s effective documentation and ineffective documentation.

Managers  may well think an employee’s performance is irresponsible, dishonest, selfish, boorish and all sorts of other unpleasant things. But saying so in disciplinary documentation serves no purpose.

If the narrative is long on emotion and personality judgments and short on facts, it’s probably not going to stand up legally.

Effective documentation is about behavior, work outcomes or the impact of the employees’ behavior on the overall operation.

So managers need to remember the old Jack Webb mantra from Dragnet: Just the facts, ma’am.

When they write up an employee, managers need to ask themselves a couple of key questions:

  1. Have I described what happened, and its effect on our operation?
  2. Have I avoided interpreting the employee’s behavior?

A couple of examples:

Weak: “Bob was irresponsible by not paying attention to detail in the thingamajig assembly process.”

Stronger: “Bob failed to install one of the washers involved in the thingamajig assembly process. When his mistake was discovered, we had to stop the line, disassemble 14 units, add the washer and reassemble the units. The rebuilds halted production for a total of two hours.”

Getting employees to sign off

Ideally, managers want employees to sign all written disciplinary documents. But employees often refuse.

What’s the answer? Managers have some options.

  • “Agree/don’t agree” check boxes. The employee puts a tick mark in the appropriate box, and then signs on the dotted line.
  • The “I refuse to sign” technique. The manager just asks the employee to turn the memo over, write, “I refuse to sign,” and then initial it.

Both approaches achieve the desired result: Solid evidence that the employee has received the disciplinary document and understands its contents.

Whether they agree with what’s in the document doesn’t matter. The important part: The manager can prove they’ve received it.

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