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Less Documentation May Sometimes Be Better When Letting People Go

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More often than not, when employers make a decision to terminate someone, multiple factors influenced the decision. Yes, the proverbial “straw that broke the camel’s back” may have been the employee’s recent string of unexcused absences, but perhaps the terminated employee had other problems as well. Had the employee been a star performer who worked well with everyone, his immediate supervisors may have overlooked the absences, or opted for a warning as opposed to the ultimate penalty.

In documenting the reasons for the above-described employee’s termination, however, many employers will only identify the triggering cause of the termination and fail to provide a fuller or more nuanced context for the decision to let the employee go. Especially problematic are those — usually larger — employers that use “check list” termination forms giving the supervisor a list of 20 or 30 reasons for termination. If your company has one of those forms, and the supervisor fails to check off some of the other factors that may have influenced the decision to terminate the employee, even though they may not have been determinative factors by themselves, you are likely to be challenged on those reasons if you rely on them when defending the termination decision in a subsequent trial.

So, what should employers do? Ideally, your employment lawyer would prefer if each termination decision was well-documented and fully addressed all of the factors that contributed to the decision. This is easier done when a termination decision is discussed in advance with either a seasoned human resources manager or an employment lawyer. I also recognize that supervisors often have a lot on their plate and would rather not spend the time thinking about how to thoroughly explain their decision in the company’s disciplinary paperwork. If there is a good chance that documentation may be less than ideal, employers may be better off using simpler forms that simply record the date of termination and whether the employee is eligible for rehire, which will be hard to use against you when you explain yourself more fully in the future.

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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.