Managers very often find disciplining employees and making the final decision to terminate employment very challenging. One challenge is that with every decision there is a risk of a lawsuit. So, proceed carefully. Even the most experienced supervisors encounter stress and anxiety during this process. You must have a clear idea of proper disciplinary and termination procedures to prevent you from making costly mistakes. The more you know about how to handle these tricky situations, the more confidence you will have knowing you are within the limits of the law.

Proper Documentation Can Save You

If you are taken to court for wrongful termination the employee must prove that you based your decision on an illegal factor (e.g., age, race, gender, etc.) and not on a legitimate business reason such as poor performance or violation of a work policy. In almost any lawsuit challenging an employment decision the employer should prevail IF records clearly establish a legitimate business reason for the action. For example, if an employee alleges, he/she was terminated unlawfully due to age, but the employer’s documents establish he/she was let go for repeated violations of company rules, the employer should have nothing to worry about.

Documentation is the key. Most employers follow progressive discipline, wherein an employee receives a series of warnings before termination. For example, the employee may get a verbal warning for a first offense, a written warning if the problem continues, a final written warning and, as a last step, termination.

Recording Performance Issues

Discipline puts the employee on notice of the severity of the problem, as well as the consequences for not correcting it. If the problem persists and terminating the employee becomes necessary you will have a record of the problem and the actions you took to address it.

Failure to maintain proper documentation is the single most common mistake managers make when handling discipline or termination. It is critical to understand that your company may have to explain a termination decision years after it occurs. Managers who fail to maintain proper documentation may hurt the employer’s case in unemployment-compensation disputes, workers’ compensation cases and other legal matters challenging employment decisions. In the case of employees terminated for poor job performance or misconduct, this means having to retain all job evaluations, disciplinary write-ups and notes about what was said in each counseling session leading to the termination decision.

Consider these steps to maintain effective documentation:

1. Include the facts, i.e., date, time and location of the problem.
2. Focus on the behavior – not the person – stick to the facts only. Do not comment on personality traits, etc.
3. Don’t exaggerate – avoid words such as “always” and “never”.
4. Identify the rule or policy violated
5. Set expectations for improvement
6. Include consequences – A formal write up should indicate what action you will take if the performance does not improve.
7. Set a deadline.
8. Get the signature and date.

If there continues to be issues after counseling, you may have no other choice but to terminate the employee.

Preventing Progressive Discipline

Disciplining an employee is never a pleasant task. For the sake of everyone involved, managers should take action to prevent the need for disciplinary action by:

• Communicating company policies and the company’s Code of Conduct clearly to all new hires.
• Announcing any revision or changes in the policy to all employees in a formal manner, i.e., bulletins, newsletters
• Use frequent employee performance meetings to address issues before they become a problem.
• Train managers to communicate, enforce and abide by policies.
• Train employees in certain policies and procedures.
• Establish a culture of respect and collaboration.

As a final reminder, people make mistakes and employees may not always follow company policies closely. Management should always want to give employees a chance to correct their behavior when possible and assist them in the process. Coaching and counseling is always the best first step but when that does not work, you need to remember that documentation is the best defense in a courtroom. Employers should ensure that serious offenses are thoroughly investigated and dealt with.