Employers Document Unacceptable Employee Job Performance – Bill Pinkston
|William E. Pinkston
Denton Law Firm
555 Jefferson Street
Paducah, KY 42001
Employers Must Document Unacceptable
Employee Job Performance
Small businesses are often the target of wrongful termination lawsuits. In Kentucky, most workers are at-will employees, meaning that they can be fired with or without cause. That seems as though there should be no wrongful termination issues, but that is simply not true.
The law has carved out many reasons why an at-will employee cannot be fired. For example, the employee cannot be fired for discrimination due to age, gender, religion, color, country of origin, disability or veteran status. Some Kentucky cities have ordinances that also prohibit firing someone because of their sexual orientation.
Employees, even at-will employees, cannot be fired because they have reported what they believe is misconduct on the part of their employer. If the employee is one who has an employment contract, the employee may claim the termination was in violation of that contract.
Employers need to protect themselves from allegations that they have wrongfully terminated an employee, even an at-will employee. The best way to do this is to keep accurate documentation of the employee’s performance and any misconduct that may have occurred in order to support the reason the employee was terminated.
Specific Actions Employers Should Take to Alleviate the Risk of a Post-Termination Lawsuit
No matter what employers do to protect themselves from a wrongful termination lawsuit, such
lawsuits will be filed. Even though it may seem harsh, prudent employers will protect themselves from a lawsuit by recording, documenting, and preserving evidence showing an employee ultimately must be fired.
Employers need to begin protecting themselves from wrongful termination lawsuits beginning on the first day the employee begins work. Some specific actions include:
- On or before the first day of employment, give employees an Employee Handbook in which specific behavior is described that will not be tolerated, for example, drinking on the job, excessive tardiness, and other examples of unacceptable behavior that may result in termination.
- The Employee Handbook should include expectations of employees and outline the compensation and benefits they will receive.
- Requiring employees to sign an acknowledgement that they have received the Employee Handbook and understand its contents. The signed acknowledgement must be kept in each employee’s personnel file.
- Implementing a periodic “performance review” procedure where the employer meets specifically with an employee to discuss any issues, good or bad, with the employee. Any concerns the employer may have should be documented.
- The employee should sign the performance review acknowledging that the meeting took place and topics that were discussed. The acknowledgment should state that he or she understands the evaluation and any dissatisfaction the employer has with the employee’s performance. This document must be kept in the employee’s personnel file.
- Any incidents of employee misconduct must also be documented and placed in the employee’s personnel file.
- If an employee who has an employer/employee contract, and has in some way breached that contract, employers should meet with the employee and discuss the breach. Acknowledgement of the meeting must be signed by the employee and kept in the personnel file.
Although these ideas will not prevent employers from being sued by a former employee, they will help demonstrate the employer’s genuine issues with the employee’s performance of behavior. The documentation demonstrates the employer’s good faith in making the ultimate decision to terminate the employee. As a side benefit, employers may be able to “coach” an employee so that the behavior is changed, and termination is not required.
When the personnel file contains the suggested documentation, even if a wrongful termination lawsuit is filed, it is likely to be quickly dismissed.
If you are a small business owner and plan to terminate the employment of an at-will employee or one with whom you have an employment contract, contact William E. Pinkston, Litigation Partner at the Denton Law Firm. Together, we can make a plan of action in order to minimize your exposure to a wrongful termination lawsuit.