HR Base Camp Roundup – September 8th, 2022

Timely and consistent action is key when it comes to protecting your business. This week’s top question from our HR Base Camp Facebook Group and HR Solution Center addresses why waiting to address employee issues could cause problems for employers:
 
Click here to listen to CEDR CEO Paul Edwards' podcast "What the Hell Just Happened?"
 

Can you fire a low-performing employee if you don’t have documentation of their performance issues?

I have an employee who is late ALL. THE. TIME. We’re talking at least three times a week she shows up 30 minutes or more after her shift starts. She was an hour late today and left us stranded with a patient. I’ve finally had enough and just want to let her go. Trouble is, I never actually documented her performance issues. I’ve talked to her about it, but never made a record. Can I still let her go safely?

Here’s the thing you need to know about documentation: the point of keeping records of an employee’s performance problems is two fold:

  1. Your records of an employee’s performance issues can help you support your reasons for taking adverse employment actions against that employee, up to and including termination, and 
  2. Diligent record keeping will help you demonstrate your efforts to manage your team in a way that is consistent and in accordance with labor laws.

You never know if and when an employee might turn around and claim that you took an adverse action against them for an illegal reason. Adverse actions include disciplinary actions like write-ups, suspensions, denying bonuses, demotions, cutting hours, reassigning duties, termination, and more. Of those, terminations generally present the most risk for employers.

Legal reasons for taking adverse action against an employee are usually related to that employee’s poor performance or behavior, insubordination, violating your policies, or due to your business facing financial difficulty.

Illegal reasons for taking adverse action against an employee usually take the form of discriminating against an employee for being a member of a protected class or retaliating against them for engaging in some form of protected activity. Examples of protected activity include filing a complaint with a governing body like OSHA or your state board, engaging in protected speech about working conditions or wages, filing a workers’ compensation claim, and taking protected sick time or a protected leave of absence.

Whether you realize it or not, all employees are members of a handful of protected classes. Everyone has an age, a race, a gender, a martial status (even if it’s single), some religious affiliation (even if it’s agnostic or atheist) and all people are legally protected against adverse employment actions that are taken on the basis of those protected classes or their participation in protected activities.

At the risk of stating the obvious, you can’t terminate someone or discipline them in a way that is different from how you’ve treated other employees in similar situations because of their protected class or activity. 

Here’s where that gets a little sticky for employers. Your employees don’t need documentation to prove they are in a protected class. Being a member of a protected class is simply part of being a human being. 

And, when it comes to protected activity, there will almost always be documentation to show that the activity occurred, whether that’s the actual form from a workers’ comp claim, a text or email showing that an employee used a protected sick day, a record of a complaint being filed with a governing body, etc.

That means your employees will generally have no trouble demonstrating to an employment law attorney or a judge that they are, in fact, a member of a protected class or that they engaged in some form of protected activity. 

So, if you terminate an employee and they claim that your reason for doing so was an illegal one, it will be up to you to prove that you made the decision based on legal criteria. That’s where your documentation really comes in handy.

That said, you should always address performance or behavioral issues – in this case, tardiness – within a reasonable amount of time after the problem presents itself. You’ll also want to document each and every one of the conversations you have about the issue or issues at play. That way, when you finally get to your breaking point, you will have built a chain of evidence demonstrating that your reasons for letting an employee go were based on legal criteria. 

Letting an employee go without the proper documentation on file will make termination much more risky for you. Your best bet from a risk-management perspective is to start documenting issues now and wait to terminate until you are confident that your documentation tells the same story for terminating that you plan to give to the employee when you let them go.

Though J. Lo (allegedly) might feel comfortable firing a group of employees without documentation based solely on their astrological sign (you can learn more about that here), we think that approach is a bit reckless for the average (or any) small business owner.

You can use the following resources for help getting your ducks in a row before letting an employee go:

You can also watch our on-demand webinar on terminations featuring CEDR CEO and Founder Paul Edwards here.
 
Click here to listen to CEDR CEO Paul Edwards' podcast "What the Hell Just Happened?"
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At CEDR, we help employers protect their businesses and build stronger teams. Because stronger teams build better workplaces, and better workplaces make better lives.

Have an HR question you need to talk through with an HR expert? Reach out to the Solution Center for expert guidance, or get your questions answered in our private, professional Facebook Group, HR Base Camp.

Sep 7, 2022

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.
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