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SHRM Newsletter: Ideal Way to Handle-Document the Performance-Based Discharge of an Employee
Posted on Nov. 5, 2013

This is Utah SHRM Legal-mail no. 2013-19 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).

CONTENTS:

IDEAL WAY TO HANDLE/DOCUMENT THE PERFORMANCE-BASED DISCHARGE OF AN EMPLOYEE

INTRODUCTION:  I sent this out four years ago – the outline of an ideal way to document an employment termination for poor performance.  It seems like a good time to remind everyone about it.  Good documentation is an essential HR tool. It helps an employer manage employees and puts an employer in a better position to defend lawsuits when necessary.  Here is the outline:

 

BEST PRACTICE

Outline of an ideal way to handle the performance-based discharge of an employee

Time Event

WHAT A SUPERVISOR SHOULD BE DOING

HIRE DATE

Manage supervisor gives employee a written job description giving fair notice of his/her job duties and performance expectations and goals.

 

REGULAR INTERVALS AFTER HIRING

Supervisor checks in with employee to verify adequate performance and good job fit.  Supervisor provided continuing and regular oversight, coaching etc.

 

ANNUAL PERFORMANCE REVIEW(S)

Conduct a truthful and accurate review of employee’s performance during full  relevant period.  Note if problems exist and include discussion of relevant job actions (e.g. warnings or discipline, successes, etc.).  Poor performance should impact evaluation score.

 

FIRST SIGN OF SERIOUS PROBLEMS

Apart from regular coaching, at this point there should be a discussion with the employee.  Document the discussion with a note to file or email.  Document the discussion with a note to file or email.  Depending on seriousness, escalate to HR and perhaps discipline.  Early HR involvement can hasten a resolution and minimize risks.

 

ADDITIONAL PROBLEMS

Further discussions and coaching. HR involvement and perhaps discipline, maybe written warnings depending on how serious the problem.  Repeat clear objectives for improvement and means to measure the same.

 

ONGOING PROBLEMS

Escalate discipline (final warning notice).  Document nature of problem, how it can be fixed, clear timetable for doing so and consequences of failure to do so (such as discharge).  Make sure you consider employee’s side of story but do not engage in “debates” when employee disagrees.

 

TRIGGER FOR DISCHARGE

There should be some event that moves the situation towards termination (e.g., expiration of final warning renew time period without needed improvement, additional major mistake, misconduct, etc.).  Beware of subjective conclusions (e.g., “He just doesn’t fit in!”) and instead identify the underlying objective facts leading to any particular conclusions.

 

DISCHARGE

Discharge should flow logically from the documentation of expectations given and problems noted.  Here is the main goal of the whole process:  anyone who might try to second guess you should conclude there was clear explanation of expectations, notice of problems and a documented chance to improve before discharge.  HR involvement should ensure company-wide consistency (i.e. that various departments use the same type of discipline for the same types of offenses) and that the written record supports the termination decision.

 

DISCHARGE LETTER TO FILE

Document what happened and why, in clear terms but with as few words as possible.  Remember this will be “Exhibit A” in any post-termination dispute, so do it properly.

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Author

mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition

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Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien
 

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012