Best Practices in HR

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Michael Haberman
  October 1, 2018

Why it is important to document a termination

I have a webinar that I occasionally conduct on the importance of documentation. Documentation is that bane of existence for the HR professional, as it is absolutely necessary for the defense of the company when needed, yet it is almost impossible to get supervisors and managers to do it, willingly anyway. Recently I came across an article written by attorney Thomas Pence of the firm Foley & Lardner LLP. He specifically talked about the importance of documentation for terminations and pointed out several wrong ways to document and one he considers the best.

Why document?

Pence says that there are two reasons to document and I agree with him. The first reason is “…it helps the employer remember why it terminated the employee, especially in situations where the original decision makers are no longer with the employer.” There is an old saying that I use in my webinar that says “The palest ink is better than the best memory.”  Most actions, aka lawsuits, do not occur right after the event and study after study shows how faulty human memory is. One such study says “In the courtroom, even minor memory distortions can have severe consequences that are in part driven by common misunderstandings about memory…”

The second reason, says Pence, is:

“…it will help the employer defend challenges to the termination decision (e.g., a discrimination claim). For example, if the employer has contemporaneous documentation showing it terminated an employee for a legitimate reason like failure to follow safety practices, that documentation will lend credibility to the employer’s version of events and help discredit the employee’s claim the termination was for a different, improper reason.”

Many an attorney has told me that judges and juries tend to believe documents much more than testimony. One attorney told me she would prefer “one page of documentation over 10,000 words of testimony.

Worse to best

Pence ranked the worst to best ways to document a termination. The first of these occurs far to often. I get calls from clients asking if they can do this. They want to soft sell the reason for termination. They want to give the reason for termination as job elimination. I generally ask them if they are truly going to do away with the job, and of course, the answer is “no.” I ask them why they want to lie about it then. I tell them starting off with a lie is not the route to future security.

Pence says the second worse method is to do no documentation. This does not help the employer at all, and in fact, may hurt. If the ex-exmployee comes across as more credible or is in dire straights as a result of their job loss then the jury is much more likely to side with them.

The third way is to be brief and give one sentence, a non-specific reason for the termination, such as “The employee was terminated for violating company safety policy.” While not very good, it is better than the others.

The fourth, and best, reason, is to give a brief description of the circumstances of the termination. As Pence says: “This sort of summary will help to refresh memories and establish credibility.” He adds “One note of caution. Be careful to avoid the kitchen-sink approach. A short summary is useful but there is no need to overdo it. A summary that is too long risks mistakes.”

If you follow these tips you will be much better off and be able to present a much more credible defense of your actions if needed.

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