With the increase in employee terminations as a result of the poor economy, it is important to remember that the reasons for termination decisions must be sufficiently supported and properly documented. Employee terminations, including those driven solely by the economy and unrelated to poor performance, must be well documented.

It is tempting for managers to simply state that a person was terminated as part of an economically motivated reduction-in-force (RIF), e.g., “I had to let someone go.” However, the specific reason why a person is selected for termination must still be articulated. Was the person's position or department eliminated? If so, why? Was the person compared to other employees in determining who would be terminated and who would stay? If so, why was this person selected instead of the other employees? Was prior performance a factor in the decision? Are the performance issues properly documented in performance reviews or elsewhere? Was the selection decision based on skill set or credentials, unrelated to performance? What skills or credentials did the person selected lack in comparison to others?

Has the company conducted a disparate impact analysis, prior to the terminations, to determine whether there are disparities in the termination decisions based on a protected status, e.g., age, race, or gender? Has the employee engaged in protected activity that may lead to a claim of unlawful retaliation, e.g., filed a harassment complaint or workers' compensation claim?

Managers may show resistance to explaining, and documenting, why a person was selected for termination. However, it is imperative that the reasons for the selection decisions be well documented. The reasons for the decisions should also be specific and not vague generalizations. For example, a statement that an employee was not a team player, or failed to complete assignments on time, is too vague. What specifically did the employee do, or not do (and when), that leads to the conclusion he is not a team player? What specific assignments were not completed on time and when?

If the reasons for the termination decisions cannot be articulated at the time they are made, it will certainly be very difficult, if not impossible, to do so months or years later if an employee asserts a claim of discrimination. Also, contemporaneous documentation is always better, and more credible, than documentation created after the fact when memories have faded, or the decision-makers are no longer with the company. Human resources professionals must insist on well-supported and documented personnel decisions