May 30, 2023 | Category: Uncategorized

Document, Document, Document

Numerous times a week one of our members will call to discuss the potential termination of an employee and whenever we receive one of these phone calls, the first question that is always asked is: What documentation do you have? Unfortunately, often times it’s that there is little to no documentation which supports the termination.

While Nevada is an employment at-will state, whenever an employer is considering termination it is essential that they have taken appropriate steps to document the business reasons for the termination. Proper documentation is essential because it allows an employer to be prepared to defend themselves against any claim an employee can make, such as unemployment claims, discrimination claims, and even unfair labor practice (ULP) claims.  While an employer has no power to prevent an employee from filing such claims, an employer can ensure that they put themselves in the best position to defend and defeat claims if and when they are filed.  Appropriate documentation is one way an employer can protect themselves from liability as a result of the decision to terminate an employee.

But not just any documentation will do. Let’s look at some best practices for documenting employee performance issues or employee misconduct.

First and foremost, all documentation needs to be timely and thorough. Many times, when a company realizes they want to terminate an employee but there is no documentation, they try to scramble to put together some documentation for employee termination. However, unless the documentation is completed at the time of the performance issue(s) or the policy violation, it will not be useful in defending against claims that might arise. If there have been ongoing and consistent performance issues or employee misconduct, documentation should be ongoing and consistent during their time with the company.

The documentation should also be thorough. It is not necessary to write a novel every time an incident occurs or a policy violation happens. However, documentation should include specific details about the performance issue or policy violation, a record of discussions that occurred, along with relevant dates and times.

Also, any performance issue or policy violation can and should be used as a coaching opportunity. Employees should be provided with clear expectations and those expectations should be detailed in the documentation. Clear expectations are set for an employee throughout their employment by having up-to-date job descriptions and employee handbook. But it is also important to include expectations in any disciplinary documentation, whether its an employee counseling or a written warning, so that employees know what they need to do to improve and overcome ongoing issues.

Documentation should also build upon itself. If an employee has a history of poor performance or disciplinary problems, those issues should be noted in each disciplinary action as well as on any performance review.  By doing this an employer creates a clear and understandable record of service for each employee. If an employee continues to underperform or has ongoing disciplinary problems then the documentation is helpful to show coaching efforts but also that the employee has been unable to improve their performance or behavior despite being given numerous opportunities to do so. Further, if an employee improves, it is important to document that as well.

Finally, employers often get into trouble when managers or supervisors allow employees to get away with disciplinary or performance issues without documenting those issues for a period of time and abruptly terminate when the manager or supervisor has reached their limit. These types of situations open an employer to the greatest risk of receiving a claim; therefore, it is important to train managers and supervisors on a company’s disciplinary policy and how to properly document performance or disciplinary issues.