ABCs of Documentation: Make an Airtight Case for Termination

What’s the one thing companies need to have before they decide to part ways with an errant employee?

If you’ve been in HR for more than a minute, you know the answer: Airtight documentation.

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

Establishing a paper trail you can depend on can protect you against legal backlash and keep you in compliance.

Good Documentation Behind Proper Termination

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, good documentation can stop a lawsuit on its own, well before it hits the judicial system. An employee’s attorney, presented with a thorough and thoughtful written record, may 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 a jury sees written proof that the employer engaged in ongoing communication about performance problems and set clear expectations for the employee.

Now, here are steps to be certain you’re documenting effectively and making an airtight case for termination.

1. Know When It’s Time to Document Verbal Warnings

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

While it’s a bit of a judgment call, the key is to document anything that could lead to more verbal or written warnings.

To note, 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 this 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.”

2. Document Verbal Warnings

After an encounter like the one with Bob, managers want to write down — as precisely as possible — exactly what they told the employee. They’ll want to let the employee know it was documented, but they probably don’t need to get the employee to sign off on the document.

From there, they’ll need to date it and add it to the employee’s file.

3. Formalize Documentation if There’s No Change

If the employee then fails to improve, the manager will want to begin your formal progressive discipline process.

And in the first formal writeup, the manager will need to refer to earlier verbal coaching: “As we’ve discussed on several occasions, including Tuesday, November 21, at the end of your shift, 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.

4. Mind the Narrative

Not all documentation is effective. You need effective documentation to make airtight cases for termination.

One thing to watch out for: Managers may 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.

5. Document Effectively

Effective documentation is strictly 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 managers write up employees, they’ll need to ask themselves a couple of key questions:

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

Here’s an example:

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.”

6. Get Employees to Sign Off

Ideally, managers will get employees to sign off on 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.
• I Refuse To Sign technique. The manager asks the employee to turn over the written memo, write, “I refuse to sign,” and then initial it. If a written version isn’t possible, you can do something similar with an email.

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

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