TOP TIP: Document! Document! Document!

All too often, an employer becomes frustrated with an employee’s continuing poor performance or conduct and wants to terminate – but lacks the documentation to establish the performance and conduct issues and to demonstrate that the employee was counseled about them. There are many reasons that managers give for the lack of documentation – not wanting to create a negative disciplinary history for the employee, not having the time to do so, not being aware of the need to document, etc.

This lack of documentation, however, creates significant risk for an employer who chooses to move forward with the termination. Factfinders, whether the Equal Employment Opportunity Commission or a judge or a jury, hold employers to a higher standard when it comes to documentation. Frankly, without contemporaneous, written evidence of the issues, the factfinder will be likely to conclude that the employer is just making them up. And without documented, typically progressive counseling about those issues, there is the sense that the employee has been denied the notice and opportunity to fix the problems. Without evidence to support the employer’s reason for termination, the factfinder will be likely to find that the termination was actually for an impermissible reason – such as discrimination or retaliation.

A recent case provides a good example of the benefits of documentation. In Sieden v. Chipotle Mexican Grill, Inc., a restaurant General Manager was terminated two months after informally complaining about his supervisor’s comment that the GM was “hiring too many Hmong people.” He claimed that his termination was in retaliation for his complaint about the supervisor’s racist comment. The company was able to demonstrate, however, that the termination was based on his poor performance. Specifically, the company had documentation establishing that the GM had been counseled on his performance prior to his complaint, and significant responsibilities had been removed. Moreover, his most recent performance evaluation also included those concerns. Given this documentation, the U.S. Court of Appeals for the Eighth Circuit found that the employer had a legitimate reason for the termination, and the employee could not demonstrate that the reason was a pretext for discrimination.