Why HR leaders should document everything before firing someone

Performance-improvement plans and mutual separation agreements can help reduce some legal risks associated with firings.
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· 4 min read

The Apprentice, Undercover Boss, Hell’s Kitchen: All depict the highs and lows of work, including firing. Deciding whether to fire an employee involves a mix of ethical and legal considerations—and the stakes can be high.

HR Brew spoke with a variety of consultants about how HR leaders can protect their employers during the employee-termination process, while also doing right by the worker who’s losing their job.

Document everything. Documentation should start during the onboarding process, when HR shares the employee handbook, explained Denise Giraudo, a labor and employment lawyer with the law firm Sheppard Mullin. “The employee handbook is huge from an employer and employee aspect,” she said, because it provides employees with clear rules regarding the company’s policies and how HR will respond to infractions.

The experts that spoke with HR Brew agreed that it’s vital to document any issues with performance or behavior, as doing so can protect an employer during the termination process.

If an employee consistently fails to meet expectations, their manager and HR may decide to put them on a performance improvement plan (PIP). This is usually the last step an employer will take before firing a worker who isn’t performing well. Sarah Rodehorst, CEO of Onwards HR, a tech company that specializes in staff reduction, explained that a PIP should be a clear document between HR, the manager, and the employee with “clear standards of what they would want that employee to achieve…and in the instance that they aren’t [achieving those goals], then there is that documentation that is so important in order to move forward with that termination.” The PIP should be individualized, and all parties should agree to the timeline and goals outlined, suggested Rodehorst.

Jooho Lee, assistant professor of business ethics and law at Pepperdine University, told HR Brew that the purpose of a PIP shouldn’t be to fire someone, but rather to help the employee make meaningful change and become successful in their role. “It’s important that it not be too burdensome, that it’s something reasonable—something that can be met and it meets the worker where they’re at.”

Legal guidelines. At-will employment is a legal doctrine that dictates an employee can be fired by an employer “for any reason and at any point, so long as the dismissal isn’t for an unlawful reason,” according to the Legal Information Institute. All US states, except Montana, are at-will states, although there are some exceptions that circumvent an at-will statute. But Giraudo said at-will employment doesn’t give employers carte blanche.

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Employers must also consider federal regulations that protect workers from discrimination on the basis of race, gender, religion, age, or disability, and regulations that prohibit discrimination based on sexual orientation or gender identity in certain states.

“HR professionals as well as a company should ensure, first and foremost, that the reason for the discipline [is] not based in any type of discrimination or retaliation,” which is “the best way to protect yourself,” Giraudo emphasized. This is why documentation is so important.

Mutual separations. The outright firing of an employee isn’t the only option, though. As Rodehorst explained, there can also be a “mutual separation agreement,” in which the employer and employee agree that the working relationship should not continue. In those instances, “employers will offer an employee severance in exchange for waiving the rights to come back and file a claim against the employer,” Rodehorst said. The nature of the agreement can allow the employer extra legal protection, while also providing the employee with severance or time to find another job.

The mutual separation route can also offer HR a way to do right by an employee who just isn’t working out, Lee explained. “It’s an invitation of trust where you say, ‘You know what, it’s not working out, but let’s give you some time for a soft landing,’” he said. “That might be better than…a dog-and-pony show that doesn’t really have any intention.”

No matter how careful HR leaders are when terminating an employee, there’s always a level of risk, Giraudo said. “We live in a very litigious world. Even if you are doing exactly the right thing, totally in line with a law. There’s no guarantee that you’re gonna not be sued.”—KP

Do you work in HR or have information about your HR department we should know? Email [email protected] or DM @Kris10Parisi on Twitter. For completely confidential conversations, ask Kristen for her number on Signal.

Quick-to-read HR news & insights

From recruiting and retention to company culture and the latest in HR tech, HR Brew delivers up-to-date industry news and tips to help HR pros stay nimble in today’s fast-changing business environment.