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:

Establish fair work rules and policies. Your employees need to know what you expect of them in terms of workplace rules. It’s important that you clearly communicate these rules to all employees.

Enforce your rules fairly. You can have the most reasonable rules ever written, but if you don't enforce your rules, they're useless. For legal purposes, you must apply your rules equally to all your employees, if you hope to rely on them.

Example

In many cases, employee attendance is absolutely critical to the successful operation of the business. If that's the case, it's wise to have a written absence policy and a method of tracking employee absence. The policy informs employees about what is expected, and a tracking system provides an accurate summary of the problem, if one exists.

Establish a performance feedback system. Regular performance reviews can help you bring a worker up to par. If your effort to help an employee improve doesn't achieve the desired results, regular reviews can document the fact that you tried to help the employee improve.
Investigate the "last straw" incident thoroughly. In many cases, an investigation can take just a few hours, so don't ignore this important step. Sometimes, after investigating, you may decide that termination isn't appropriate.