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termination

Managers often fail to utilize one of their best weapons against discipline-related lawsuits – the manager’s unofficial employee file. There are many reasons this happens – the matter seems trivial, the conversation was informal, or the manager is busy. Regardless, a failure to create a paper trail of significant interactions with an employee can come back to haunt us, particularly when it’s time to lower the boom on an unproductive or insubordinate employee.

The Employee File

Employee files should be kept on everyone a manager manages. This file should be kept in a locked cabinet in a supervisor’s office; if a manager uses a computer to type his/her notes, they should not be on a shared drive. These notes are for the supervisor’s eyes only.

These employee files are extremely beneficial for keeping information chronologically up to date. When counseling is necessary, or performance appraisals or due, we’ll have information at our fingertips and need not rely on our past memory. This can also help us avoid the recency effect, i.e., the tendency to rely only on the most recent information when giving a performance review.

How to Document a Conversation

Virtually all managers give their employees oral notice about poor performance or minor misconduct. This notice can range from correcting an employee’s performance to noting an employee was tardy to verbally “warning” an employee that certain conduct is inappropriate and will not be tolerated. These warnings, given contemporaneously can be very effective in showing performance problems because of their immediacy. In fact, in cases where a manager contends that an employee had “some type of performance problem almost every day,” documentation of exactly these kinds of problems can be the most useful evidence.

Effective managers use different formats when taking notes for their employee file. In addition to documenting specific conversations, some managers keep lists of critical incidents (good and bad) that happen – accomplishments and contributions, problem areas and errors, and strengths and weaknesses. It can also be useful to keep track of an employee’s stated goals, ambitions and aspirations.

Such documentation should:

  1. Be as close in timing to the incident as possible. Ideally conversations should be documented on the same day they occur.
  2. Create a context for your conversation. Include the date of the conversation, the manager’s name and title and the employee’s name and title.
  1. Stick to the facts. Write down exactly what you said and exactly what the employee said.
  2. Include the “take away.” State the action plan you told the employee, being clear about the expectations you set for the employee to follow.
  3. If the conversation is a verbal warning, document this. In particular, be sure that you make notes of conversations even when it involves a meeting in which you presented the employee with a written disciplinary document or action plan. The document you gave the employee does not reflect the entire conversation about the issues discussed.

Too Much of a Good Thing

While most managers err on the side of neglect when it comes to documentation, it is possible to err on the side of overkill. Here are three examples:

1. Focusing only on the negative. Managers are often taught that documentation is for problems and, as such, fail to keep track of the positive. Not only can this skew an employee’s performance appraisal, juries don’t like to think that a manager is gunning for an employee.

2. Exaggerating. In an effort to highlight their concerns, managers often use dramatic words such as “always” and “never,” when documenting performance concerns. However, in reality, these can undermine your credibility (the employee is sure to point out the one time s/he was on time or exceeded expectations) and hurt you in court. It’s much more effective to stick to the facts to get your point across (Joe was late by at least 15 minutes on 13 out of the past 14 work days).

3. Over-documenting. A manager who documents everything may be perceived as harassing an employee through micro-management. While this isn’t against the law, anyone reviewing a file that apparently documents every insignificant detail is more likely to conclude that the organization is not a nice place to work or that the documenter has a clear agenda. This is especially true when a manager has over-documented one employee’s performance, but has provided relatively little documentation regarding other employees.

The Bottom Line

HR managers can play a critical role in helping their managers develop a documentation system that includes informal conversations, contributions and problems. Obviously, no manager should document every conversation with an employee. But where a problem exists that would justify discipline if it was recurring, some type of written documentation is needed.

Employees who “get no respect” are future plaintiffs, particularly when they’re being fired. In fact, the results of 150 structured interviews with 996 recently fired or laid-off workers (Administrative Science Quarter, September 2000) found that the way an employee was treated at the time of termination had nearly twice as much effect as any other variable in predicting who would sue for wrongful termination and who would not; less that half of one percent of the respondents who felt they had been treated with “very much dignity” at their time of dismissal filed claims in comparison to 15 percent of those who said they had “not at all” received respectful and dignified treatment at the time of termination.

What employees were told when they were let go was also important. Less than 2 percent of terminated employees who were given an accurate and honest explanation of why they were being fired filed wrongful termination claims. In contrast almost 20% of employees who were given no explanation (or this was the first time they were hearing it) filed a claim.

I Don’t Deserve to Be Treated This Way

Looking at the reasons employees file wrongful termination lawsuits (and why they don’t) offers us some insight into how our employees expect to be treated while they’re still working for us. Basically, our employees want us to be FAIR. In particular, they feel entitled to two things from their managers – interpersonal sensitivity and accountability. In other words, employees believe they deserve to be treated politely and respectfully (regardless of the circumstances) and they expect truthful explanations for actions and decisions that that affect them personally.

There are some good psychological reasons why our employees want to be treated this way. For example, research has consistently shown that people who are treated with dignity emerge from experiences – even painful or negative ones – with a sense that they have been treated fairly. And being treated fairly helps us not take the negative outcome quite so personally; when we’re disciplined for something we’ve done, we can handle it. When we’re treated like a bad or insignificant person, it’s a different ball game.

Message from Jurors: Don’t Make a Bad Situation Worse

Jurors apparently agree. In my experience, jurors in employment lawsuits are much more motivated to punish an employer whom they believe has been rude or insensitive during a tough time they are to reward a plaintiff whom they like or feel sorry for. In fact, jurors don’t even have to like, respect, or empathize with a plaintiff if they feel indignant about how an employer handled a termination, layoff or discipline decision.

The good news is that the employer (and, in particular, the immediate supervisor) who treats employees fairly throughout the employment process has a great advantage not only in terms of reducing the likelihood of employees filing claims, but in defending the ones that are filed.

The Bottom Line

While no one is happy about being terminated, it’s the way it’s handled that most often gets the litigation ball rolling. Employees who are fired without warning, who are, without cause, marched out the door by security, or who learn about it through a nasty email are employees with an axe to grind. And there are plenty of lawyers to help them grind it. “It’s not FAIR” is the battle cry of the legal war zone.

Of course, not all mistreatment is intentional. Few managers are trained in how to communicate around discipline and termination and, as a result of their own discomfort, may come across as emotionally uncaring or cold (or take the chicken’s way out and communicate it from a distance). Let’s hope employers wise up to the fact that a manager who doesn’t know how to deliver bad news – a skill that can be easily learned – can be as detrimental to the workplace as one who makes bad decisions.

Employees who “get no respect” are future plaintiffs, particularly when they’re being fired. In fact, the results of structured interviews with 996 recently fired or laid-off workers (Administrative Science Quarter, September 2000) found that the way an employee was treated at the time of termination had nearly twice as much effect as any other variable in predicting who would sue for wrongful termination and who would not; less that half of one percent of the respondents who felt they had been treated with “very much dignity” at their time of dismissal filed claims in comparison to 15 percent of those who said they had “not at all” received respectful and dignified treatment at the time of termination.

What employees were told when they were let go was also important. Less than 2 percent of terminated employees who were given an accurate and honest explanation of why they were being fired filed wrongful termination claims. In contrast almost 20% of employees who were given no explanation (or this was the first time they were hearing it) filed a claim.

I Don’t Deserve to Be Treated This Way

Looking at the reasons employees file wrongful termination lawsuits (and why they don’t) offers us some insight into how our employees expect to be treated while they’re still working for us. Basically, our employees want us to be FAIR. In particular, they feel entitled to two things from their managers – interpersonal sensitivity and accountability. In other words, employees believe they deserve to be treated politely and respectfully (regardless of the circumstances) and they expect truthful explanations for actions and decisions that that affect them personally.

There are some good psychological reasons why our employees want to be treated this way. For example, research has consistently shown that people who are treated with dignity emerge from experiences – even painful or negative ones – with a sense that they have been treated fairly. And being treated fairly helps us not take the negative outcome quite so personally; when we’re disciplined for something we’ve done, we can handle it. When we’re treated like a bad or insignificant person, it’s a different ball game.

Message from Jurors: Don’t Make a Bad Situation Worse

Jurors apparently agree. In my experience, jurors in employment lawsuits are much more motivated to punish an employer whom they believe has been rude or insensitive during a tough time they are to reward a plaintiff whom they like or feel sorry for. In fact, jurors don’t even have to like, respect, or empathize with a plaintiff if they feel indignant about how an employer handled a termination, layoff or discipline decision.

The good news is that the employer (and, in particular, the immediate supervisor) who treats employees fairly throughout the employment process has a great advantage not only in terms of reducing the likelihood of employees filing claims, but in defending the ones that are filed.

The Bottom Line

While no one is happy about being terminated, it’s the way it’s handled that most often gets the litigation ball rolling. Employees who are fired without warning, who are, without cause, marched out the door by security, or who learn about it through a nasty email are employees with an axe to grind. And there are plenty of lawyers to help them grind it. “It’s not FAIR” is the battle cry of the legal war zone.

Of course, not all mistreatment is intentional. Few managers are trained in how to communicate around discipline and termination and, as a result of their own discomfort, may come across as emotionally uncaring or cold (or take the chicken’s way out and communicate it from a distance). Let’s hope employers wise up to the fact that a manager who doesn’t know how to deliver bad news – a skill that can be easily learned – can be as detrimental to the workplace as one who makes bad decisions.