Documentation of Employee Performance Issues

By Barrie Gross

I have an employee who has not been performing well, but I have no documentation of the problems. Can I still fire him?

Generally speaking, documentation of performance issues is not required unless an employer has a policy or practice that requires it. But that doesn't fully answer the question because there are many reasons why employers may not want to terminate an employee without having a full written record of the performance issues.

If an employee is terminated and sues for wrongful termination, an employer will need the documentation as part of the legal defense to help show that the employer did not act arbitrarily. Even if the employee was employed "at will," things can happen during an employment relationship to undermine at-will employment. In that case, an employer will need to show that it had legitimate reasons to terminate the employee. And documentation of performance issues and conversations with the employee about it are some of the best proof.

Also, keep in mind that a jury could be the ultimate decision maker about an employer's liability. An employer is better positioned to obtain a favorable outcome if a jury is presented with written evidence proving that the employer engaged in ongoing communications about performance problems and set clear expectations for the employee. While fairness may or may not be a specific issue in every case of wrongful termination, a corporate employer will always be viewed more favorably by a jury if it believes the employer acted fairly. After all, many jurors are employees and not employers.

Another reason an employer would benefit from having documentation of performance issues is because it allows an employer to see whether a manager has been proactive in trying to address the issues with an underperforming employee. Did the manager communicate the problems and help an employee try to fix them? Or did the manager simply give annual reviews with "met all" standards and did not communicate about performance issues? If the latter, the manager is not necessarily looking out for the employer's or employee's best interests.

Also, there could be a question raised about discrimination if the employee is in a "protected category." Written documentation of performance problems and communications about those problems can help establish that there was a basis for treating the particular employee differently from his or her peers and differently from those who are not in the same protected category.

Terminating employees requires an assessment of risk. Documentation of performance issues and of conversations with employees about those issues can help minimize risk. It will help demonstrate that the employer took some responsibility for performance issues and tried to address them with the employee while supporting a positive outcome. If the employee failed to rise to the occasion after being alerted to the employer's concerns, the documentation will help establish that the employer is not responsible for the failure.

It is a good idea to work with the human resources department and/or consult with legal counsel about the particular circumstances before terminating someone's employment. That way, employers can make termination decisions with a better understanding of the risk issues.

Be sure to also read Tips on Documentation of Employee Performance and Conduct for more helpful information.