Editor’s Note: In a three-part series, Howard Kurman and Julius Steiner discuss termination without litigation. The first article focused on proper workplace investigations as a predicate to terminations. Part Two covers proper documentation of prior disciplines as a prelude to termination. Part Three will appear later this month.
Court decisions favoring employees on wrongful termination claims are often based on a lack of documents showing lawful reasons for termination or a lack of objectivity in those documents. This is true even though “at will” employees may be terminated for any reason that is not unlawful or otherwise in violation of public policy (a very high standard) since juries will often perceive a lack of supporting documentation as proof of a wrongful termination.
Failure to Create Documents
It is important for employers to create documents throughout the course of an employee’s employment that could ultimately provide support for termination decisions.
The creation of relevant documents is especially critical in the context of discrimination claims where applicable law provides for the burden to shift to the employer to establish a non-discriminatory reason for the negative employment decision.
Documents that could be used to support an employment termination include the following:
- Written performance evaluations
- Minutes of management meetings at which employee performance/issues are discussed
- Disciplinary records
- Attendance records
- Documents showing violations of specific employer policies
- Documents showing employer dissatisfaction with employees
- E-mails reflecting dissatisfaction with the employee
- Documents should demonstrate objectivity
When creating the aforementioned documents it is important that management is trained to avoid the type of subjectivity that could undermine a company’s termination decision. Accordingly, the following should be avoided:
- Personal comments
- Overstatements
- Speculation or Assumptions
- Emotionally charged language
- Incomplete documents
- Incorrect documents
Instead, documentation should objectively and honestly set forth employee performance issues and other problems by including the following:
- Reviews that are courteous but honest about employee shortcomings
- Accurate recordings of genuine performance issues
- Assessments based on specific facts and examples
- Dispassionate language
- Complete documents
- Correct and Accurate documents
It is also important that documents are created contemporaneously in order to avoid any issues associated with a lack of timeliness. Documents for disciplinary purposes should be uniform and devoid of extraneous detail. Only “who, what, where, when” details should be covered, which is why we recommend that standard forms be used.
Don’t get hung up on the employee signing the disciplinary form, as long as the practice is to give the employee a copy of the form.Disciplinary forms or termination letters will be “Exhibit A” in any future litigation so in serious or thorny cases they should be vetted by employment counsel. Performance reviews that are merely “puff pieces” do more harm than good and unless the reviews are honest and accurate, don’t bother doing them at all.
Training on proper techniques for documentation will pay large benefits. Along with training on the proper techniques of discipline documentation, front line managers and supervisors need to be trained on the proper principles of progressive discipline. Thus, even though most employees will be found to be employees “at will”, from experience we know that outside fact finders, be they administrative agencies, judges, juries, or arbitrators, will focus very intently on whether, and to what extent, employees have received forewarning of a potential termination. Therefore, employers need to constantly monitor and educate front line supervisors on how to properly use concepts of progressive discipline.
Frequently we see files of employees who an employer wants to terminate that are devoid of any intervening discipline, or that reflect what I refer to as waffling disciplines, e.g. an employee who is given a verbal warning, then a written warning, then back to a verbal warning, etc. This kind of waffling makes the employer, in the eyes of a fact-finder, seem inexperienced and not serious when it comes to employee discipline.
Without question, the single most effective antidote to any meritorious wrongful discharge claim is a well documented trail of intervening discipline/ warnings/ counseling. For this reason, it is well worth any employer’s time and resources to conduct effective training on effective principles of employee discipline. Our experience tells us that this kind of training, if conducted on an annual basis, can largely diffuse typical problems that we see in cases where intervening disciplines are done in a counterproductive or simply incorrect manner.
Howard K. Kurman is Chair of Offit Kurman’s Labor & Employment Practice Group. His e-mail address is [email protected]. Julius Steiner, a principal in Offit Kurman, provides counsel to clients on the entire spectrum of human resources management, employment and labor relations issues. His e-mail address is [email protected]. Offit Kurman is a full- service commercial law firm with offices in Maryland, Pennsylvania, Delaware and Virginia.
