Termination Documentation

Foley & Lardner LLP

When terminating an employee, an employer should create documentation showing the reason for and circumstances relating to the termination. The documentation serves two purposes. First, it helps the employer remember why it terminated the employee, especially in situations where the original decision makers are no longer with the employer. Second, it will help the employer defend challenges to the termination decision (e.g., a discrimination claim). For example, if the employer has contemporaneous documentation showing it terminated an employee for a legitimate reason like failure to follow safety practices, that documentation will lend credibility to the employer’s version of events and help discredit the employee’s claim the termination was for a different, improper reason.

There are various approaches an employer can take when it comes to documenting the reason for a termination. Ranked from least to most helpful, they include:

  1. Documentation misstating the real reason for the termination (e.g., writing that the employee was terminated due to a job elimination when she was really terminated for unsafe work practices). We have commented before about the problems and risks that are created by this sort of documentation – an employer should not make this mistake.
  2. No documentation. Obviously, having no documentation does nothing to help the employer remember why it terminated the employee and does nothing to enhance the credibility of the employer’s version of events.
  3. A one sentence statement – e.g., “Joe was terminated for engaging in unsafe work practices.” This is certainly better than nothing, but will not do a lot to refresh memories.
  4. A summary that includes the reason for the termination and a short summary of the circumstances relating to the termination. For example:

“On May 30, 2018, the Company conducted an investigation of Joe’s conduct. During the investigation, three employees (Sam Smith, Sara Jones and Mike Miller) confirmed that on May 30 they saw Joe take required machine guards off the X machine and then operate the machine without the guards. This conduct requires termination under the plant rules. Therefore, Joe’s employment was terminated effective June 1, 2018.”

This sort of summary will help to refresh memories and establish credibility. One note of caution. Be careful to avoid the kitchen-sink approach. A short summary is useful but there is no need to overdo it. A summary that is too long risks mistakes.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Foley & Lardner LLP

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