At times, employers are faced with the task of terminating an employee. Whether it is due to downsizing, a policy violation, or the employee simply was not a good fit, it is important that the employer has a documented record of employment events in order to defend against potential claims.
Employers should always consider what claims may be brought by the terminated employee. Is there any basis for a discrimination claim, under either federal or state law? Title VII protects race, color, religion, sex (which includes gender and pregnancy) and national origin. Harassment and retaliation based on any of those characteristics is also prohibited. The Americans with Disabilities Act (ADA) protects disabilities, both physical and mental. The Age Discrimination in Employment Act (ADEA) protects employees against discrimination due to their age (over 40). Most states have similar laws that may extend these protections to additional classes. In addition, there are legal protections for employees who engage in union-related activities or other types of concerted action in the workplace.
Maintaining a written record of an employee’s performance evaluations, policy violations, disciplinary actions, promotions, raises, rewards/recognitions, and other notable events, both positive and negative, provides a written history of the employment relationship. Policies, procedures, the employee handbook, and performance improvement plans are also important forms of documentation that record workplace requirements and employee expectations. The goal is to have documentation that will allow an employer to show that any reasonable person would have made the same decision under the circumstances existing at that time.
In other words, an employer should assume that an employee may need to be terminated at some point during his/her employment. If the employer can accept that assumption, the employer will then begin documenting each employee’s performance (both positive and negative) upfront, rather than waiting until the employee has “crossed the line” one too many times, and finding there is no documentation in the file to support the termination. Some would call this being up a creek without a paddle.
For more tips or information on proper documentation and termination, please contact HR Partners at 785-233-7860. In addition, we would be pleased to assist you with any other HR matter your business may need guidance with.