by Anne Lane
When you fire an employee, it is a stressful situation for everyone involved. As a business owner, you can reduce your anxiety about unemployment claims and discrimination lawsuits by establishing a procedure for documenting employee problems. That way you'll be able to prove you had a non-discriminatory business reason for firing an employee if you need to do so.
Every business has policies, rules and procedures that need to be followed. If yours have not been formalized, this is the first step in the process. Develop some procedure for educating employees about your policies and rules, whether it is giving employees a written copy or including them in an orientation for new employees, or both.
Just having the rules is not enough. You will need to develop a policy for enforcing them as well. You may be tempted to deal with each infraction on a case-by-case basis. There is a danger to this approach. If you don't apply the rules equally to everyone, or if you don't deal with infractions the same way with everyone, you may be accused of discrimination in the way you enforce your work rules. An employee may feel unfairly singled out for violating rules that others have also violated or an employee may feel that their punishment was harsher than someone else's.
Part of your procedure for enforcing rules should include documentation of the fact that you went over the infraction with the employee. You may consider making a form for this purpose. Include a portion for the employee to write down any comments they have. Sometimes an employee will actually admit that they have done something wrong if you give them this opportunity. Even if the employee doesn't write any comments or admit to any wrong doing, try to get them to sign the form, acknowledging that you discussed the problem. If the employee refuses to do this as well, the best you can do is to document the fact that you requested it and that they declined.
Another part of your policy should be to let your employees know what the penalty will be for further infractions. You should document the fact that you informed an employee that another unexcused absence will result in termination, for example. Just be prepared to follow through if necessary.
Besides documenting employee rule violations, you should also document the performance of your employees. Sometimes the problem you have with an employee may not be that they don't follow the rules. Instead, it may be that their job performance isn't meeting your expectations. You should routinely evaluate employee performance. Go over any problem areas with the employee. Again, give the employee the opportunity to provide comments on a written form and ask them to acknowledge your evaluation. If you end up firing the employee for poor work performance, you will have documentation of your attempts to improve the employee's work.
Finally, you should document any incidents that cause you to fire an employee, such as drunkenness or drug use on the job, theft, or harassment of others. These incidents justify your actions, but may still need to provide proof that they actually happened. Get statements from witnesses and document your investigation of any incidents immediately. If you try to reconstruct written documentation after your former employee files some kind of claim you will have a couple of problems. First the credibility of your documentation will be questionable, since it was created in response to a claim, instead of being actual documentation of the incident at the time it occurred. You also may have difficult time finding witnesses who were available to you at the time of the incident. You will also find that your memory and that of others is not as good as you would like, so you won't be able to put down all the details you could have at an earlier time.
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