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HR Tip of the Month

The importance of documenting performance problems as they occur cannot be overstated. Although this requires meeting with the employee and discussing the issue, which will almost certainly be uncomfortable, it’s your best defense to a wrongful termination claim should the employee feel litigious after termination.

Too many employers rely on the concept of employment at-will to protect them, when the reach of this concept is actually quite limited. The problem is that if an employer has little to no documentation and relies on at-will employment—and the theory that legally no reason is required—the terminated employee, their attorney, and possibly a jury of their peers will fill the blank with an illegal reason. Although you may be within your rights to terminate “for no reason,” it’s a dangerous position to take.

But if the threat of litigation isn’t compelling enough, there are other reasons to deal with performance and behavioral issues promptly and with documentation. Addressing performance and behavioral issues as they arise will improve performance and behavior! There are a few basic principles working in your favor when you commit to the manta of “don’t delay, manage today.” Here are just a few:

  1. If they don’t know they’re doing something wrong, they can’t fix it. A huge number of employees don’t realize their performance or behavior is a problem—or that it’s as bad as it is—until they are being handed their pink slip. Talking to them about it will likely lead to you having a better employee and reduce hefty turnover costs.
  2. No one likes being in trouble. If you talk to an employee about an issue and they understand that failure to improve will result in another talking to, they are likely to shape up. If they are impervious to discipline, then addressing issues early and often will help you shepherd them out the door more quickly, so you can replace them with someone better.
  3. Documentation makes it real for the employee. It’s easy to brush off a quick, oral scolding time and again, but when employees know something is “going in the file,” they are likely to take it much more seriously.
  4. Other employees will catch on. If you are consistent in addressing performance and behavioral issues, your employees will know it. But consistency is key. If you only haul employees in sporadically for failing to meet expectations, you won’t reap the benefits of a culture of accountability.

Ultimately, talking to employees and making a paper trail will serve you both during employment, by encouraging better performance and reducing turnover costs, and after, should they threaten to sue.

What best practices should you keep in mind when you’ve got the needed paperwork and you’re ready to terminate? Running a smooth termination meeting may be more art than science, but there are some things you can do to make these conversations less painful for everyone involved. Here are a few:

  • Hold the meeting in a private location.
  • Have the meeting at a time of day when the terminated employee can make a graceful exit (e.g., during the lunch hour or the very end of the day).
  • Have a script or at least an outline of the points you want to cover—and deviate from it as little as possible.
  • Choose your words carefully—the terminated employee is likely to remember them (a script should help with this).
  • Don’t exaggerate the problems that led to termination.
  • Don’t downplay the problems that led to termination—giving a weak reason like “poor fit” will often lead employees to make up their own illegal reason for the termination.
  • After the meeting, take notes about what was said by whom, should what happened during the meeting ever come into question.

Content provided by TPC HR Support Center.