We routinely receive calls from employers who want to terminate an employee (or have been sued for doing so) but do not have a good paper trail to support their decision. Usually, we hear that the supervisor has talked to the employee repeatedly about performance or tardiness or other problems and is “done” with the employee. Of course, the supervisor has little or no documentation of these repeated discussions. To fire or not to fire? That is the question.

Without documentation, the terminated employee inevitably claims that he or she was never warned and had no idea there was any problem with performance and, thus, the termination must be discrimination based on [fill in the blank]. Without sufficient documentation, termination decisions are more difficult to explain, result in factual disputes that prevent early dismissal of a subsequent lawsuit, and typically cost more to defend. However, this is one of the easiest issues for employers to address. We often provide our clients with supervisor training on documentation, and this post will focus on five of the most important tips we recommend.

  1. Don’t be afraid to document.Many supervisors believe that documenting an issue will upset the employee, ruin a working relationship and create conflict that they would rather avoid. While that may be true, by failing to document issues, supervisors are not protecting themselves or the company. Seasoned human resource professionals will reject a supervisor’s request to terminate an employee for a chronic issue if there is no documentation.
  2. Don’t sugar coat.The worst mistake an employer can make is to give undeserved, or even false, written praise or a positive review to avoid confrontation. If an employee is not performing well, don’t dance around the issue in a performance review or other documentation. We once had a client that terminated an employee for poor performance and was sued for discrimination. When we reviewed the employee’s personnel file, we found that in the latest performance review, the supervisor referred to the employee as “Rock Star.”
  3. It’s okay to document a verbal discussion.Just because an action may not warrant a written warning or is the first incident doesn’t mean it isn’t worthy of documentation. A simple note in the file saying “I talked to Jimmy today about his production and the need to do better” memorializes the conversation and supports subsequent written warnings.
  4. Relate back.When documenting an employment issue, refer back to prior warnings or discussions whether those warnings or discussions were documented or not. This is an easy way to correct the lack of documentation of an initial incident and to show the number of steps taken to address the situation. For example, “Jimmy received a warning today for not meeting his production goal. He only completed 25 items and his quota was 40. I talked with Jimmy about this same issue two weeks ago when his production was low and told him that the next time he would receive a write up. He said he understood, but his performance has not improved.”
  5. Use Human Resources. Human Resources can help you word a written warning or counseling notation and avoid unnecessary mistakes. HR not only can provide guidance but will then also be in the loop on the employee issue and won’t be surprised when you later request more stringent action against the employee.

There is more you can do to improve documentation, including supervisor training, but hopefully, these five tips will get you started.