March 20, 2024
Employers should always follow best practices when firing an employee for poor performance. By following the steps below, an employer can protect itself from employment-related lawsuits.
Document Poor Performance
Very often, we advise our clients to document, document, document. Documenting performance and communicating with the employee is critical and helps to ensure fairness and protect the employer from claims that the employee was fired for other reasons, such as discrimination or retaliation.
Give Periodic Performance Reviews and Hold Regular Performance Discussions
Many companies only have annual performance reviews. If they want to make employees aware of performance issues, they should communicate more often than that. We often recommend that monthly conversations be held throughout the year to inform the employee about any issues that may exist.
Give Accurate Performance Reviews
When having monthly discussions or giving employees performance reviews, employers should be accurate and honest. Giving a 3-star employee five stars on performance reviews does nothing to correct an employee’s behavior and can critically damage an employer’s ability to defend against a subsequent discrimination or retaliation lawsuit.
Consider Performance Improvement Plans
A quality performance improvement plan (PIP) should show employees the specific criteria they must meet to stay on the job. Communication and feedback are critical to this process. It can also be very helpful in convincing a judge or jury that the employer tried to work with the employee, but the employee, after repeated efforts by the employer, still failed to meet the employer’s job-related expectations.
Terminating an Employee
Before terminating an employee, you may wish to consult with your counsel. An ounce of prevention is worth a pound of cure. An attorney’s opinion on a termination decision can save the company tens of thousands of dollars in the long run. Before contacting your attorney, be prepared to present him or her with your documented performance history with the employee.
As always, if you have any questions or concerns regarding this or any other employment matter, please contact Dean E. Leazenby at Warrick & Boyn, LLP.