Documenting Reasons For Firing

Before you fire somebody for insubordination, breaking a work rule, other misconduct, or poor performance, you should document the problem. Use fair rules and procedures, and thoroughly investigate the "last straw" incident.

The safest way to fire someone, from a legal standpoint, is to be sure that you have a valid, nondiscriminatory business reason for the action, and that you have enough documentation to prove it. Your documentation must be created in the normal course of business, before you fire the person (except, of course, for a record of the actual termination discussion).

Don't get caught trying to reconstruct documentation (such as warnings or poor performance reviews) after the fact, when you should have been creating it all along. Don't use the documentation process to build a case against one worker when other workers in similar situations did not have their actions documented. Selective documentation may be proof that a person was the victim of discrimination.

It’s important to remember that workers (and courts) are more likely to perceive a firing as fair if your employees had plenty of notice about the conduct and performance you expect. It’s also important that workers receive regular feedback about their job performance, and that they are warned whenever you find that they aren't living up to expectations.

For that reason, your ability to fire properly depends on the groundwork you lay, starting as early as the first day you hire somebody. You need to: