When it Comes to HR Issues, Document Everything
A friend of mine gave me a panic call this weekend looking for advice. It seems that he decided he wanted to fire one of his employees and was stuck on how to do it. As he explained it, while the employee in question was relatively productive with and quite skilled at his assigned tasks, he created a tremendous drag on the organization with his poor attitude, abuse of the company’s flexible work hours and poor handling of customers. While no single infraction he made was alone a fireable offence, the issues with the employee and the angst in dealing with him on a day-to-day basis had grown to a crescendo. My friend said that after reading my post, When to Get Rid of the “Best” People that Work for You, he finally decided to do something about it.
It’s worth noting here that my friend’s company is a 7-8 person service organization. The skills his specialty requires are not unique, but good people are hard to find. He is generally flat-out with more than enough business to keep him busy, but not quite enough repeatable business to let him expand on a permanent basis. Also, being a small concern, every person in the company has to interact with customers and each employee often has to fill in for others as the balance of work changes – there is not enough critical mass to have any specialization. This situation made it difficult for him to take any action aside from relatively frequent discussions of the issues with the employee. Many small companies face similar situations, of course.
It seems that the situation came to a head as the entire company is working double-time to deliver on a huge customer order. The employee concerned left a message (no direct communication) that he decided to stay home on Monday to “work on his motorcycle,” and that “he may not be able to come in [on various other days] because he has stuff to do.” He knew, of course, how critical his work that week was to delivering on the substantial order they had, yet he still chose to cut back on his work hours. For obvious reasons, the path was then clear.
Once my friend had made the decision to terminate the employee, he became concerned about any grounds the employee might have for legal action as a result of the termination. My friend has had this problem before – litigious people taking legal action with no real basis for doing so. As absurd as this may sound, this is a wise concern because running a shop as he does leaves little margin for error and the opportunity cost of dealing with a wrongful termination suit can be huge. Of course, the overhead of firing what amounts to half your staff and having to replace them is a bit overwhelming all on it’s own.
It’s important to note that this problem exists even in places that support At-Will Employment – an employment relationship that provides for either party terminating the relationship with no liability. Most places that support At-Will Employment also have an exemption from the law where there is evidence of an implied contract between the company and employee. This exemption limits the situations in which the employee may be terminated if there is any implication that a contract limiting the reasons (for cause, for example) an employee may be fired exists. Keep in mind, this contract need not be written, just implied.
Additionally, many states have fairly liberal interpretations of descrimination in termination. Termination for age, race, color, creed and so forth is against the law. If a termination even remotely looks like one of these provisions was triggered, there are fertile grounds for a lawsuit.
[Note: I’m not a lawyer nor a legal expert. You should seek legal guidance for more specific planning or if you find yourself in any situation involving the law.]
As my friend walked me through the specifics of the situation, I clearly understood the pain that he was experiencing and understood the death by a thousand cuts problem he faced. It was clear to me from his description that this guy had to go. I asked what seemed to me to be the obvious question: “what have you documented.” He gave me the answer that virtually all CEO’s of small companies give when asked the same question: “nothing.” Oy vey.
I know the feeling that there’s no time for such silly exercises like documenting conversations or simple day-to-day actions well. Why waste the time? Certainly each event is unique and unassociated with any other events. I want to deal with a problem and get it behind me, right? Any leader wants to have a positive outlook on how things are going to be and wants to avoid thoughts on how any one problem or situation may be indicative of a bigger or longer-lasting issue. The fact is that most issues are single events and can be quickly left in the past. Because of this, we find little reason to focus on any one event or problem. The high percentage of situations that work out, though, blind us to the few that don’t. Making matters worse is that the ones that don’t work out often become big, hairy messes that absorb time and energy like a black hole absorbs light.
So, while it’s reasonable to ignore the first, or even the first several, problems that you have with en employee, you should start documenting what’s happening early on while you’re still trying to work out the situation. Your primary goal should be to use the documentation in the context of discussing the problem with the employee and rectifying the situation. It allows the two of you to have a common ground for understanding what’s going on that verbal discussions generally don’t establish. If this leads to a solution to the problem, great. Everyone is better off. If, however, the problem persists, you already have an outline of what happened and what actions were taken to improve the situation. Generally speaking, and assuming that you’re a reasonable leader/manager (there are not other extenuating circumstances), you should then have all the paperwork required for you to justify your action. We’re not talking reams of text here, just a simple outline of who, what and when.
Keep in mind that any documentation has to cover a reasonable period of time. Documenting the final week before you fire someone is not sufficient. Also, this obviously doesn’t apply to anyone who may be fired “for cause” – theft, physical contact, sexual advances, etc. Clearly, no extra time for documentation is required when the employee does something heinous or truly injurious to the business.
Even better than starting a documentation trail once a problem is recognized is to simply make the goals, efforts and deliverables of any employee as objective as possible. By clearly documenting what you expect from your employees up front and demonstrating that the organization does all that is reasonable to help them deliver on those targets, the process becomes one in which it’s substantially easier to recognize success and failure. If an employee continually misses the documented (and agreed upon) objectives, you can have a more pragmatic approach to dealing with the situation. In this way, it’s easier to separate process and environment issues from those of an individual, too.
Of course, nothing is ever completely clear cut. Each situation stands on its own and needs to be treated uniquely. In general, though, documenting expectations up front helps tremendously in making rational personnel decisions down the road. If this hasn’t been done, documenting your actions in trying to fix a problem is a lesser, but reasonable backup. It’s not only a legal matter, although limiting the number of times you have to deal with legal issues is always a good idea. It’s what’s fair to anyone who works for you and will help optimize your time and energy, ultimately making the organization better. While consuming a little more time initially, like most actions that employ early planning, you’ll reap the rewards when you’re saving gobs of time in the future.