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Five Employment Defense Litigation Tips For Managing Underperforming Employees

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Amy Rudley, Esq.
November 10, 2020

  1. Issue Clear Discipline  

You are probably not thinking about your employee’s termination, and their possible lawsuit, on the day you issue their first written discipline.   However, the Statute of Limitations for most employment law claims is two years.  That means, if your employee eventually sues you, it will likely be almost three years from the date they last worked for you before you are asked to recount the details of every incidence of discipline you have given them.  Do yourself a favor now and spell it all out a little bit better when you document it.   Your memory is better now than it will be three years later.

An example of appropriate documentation is: “On February 1, 2020, employee failed to make the required bank deposit.  This was their responsibility as stated in Company Policy A.  This was the second time employee did not make the required deposit.  On January 10, 2020, they received prior discipline for this same issue.  Signed, Site Manager Jane Doe.”  

Bad documentation: “February 1, 2020, employee failed to follow policy.  Signed, illegible signature, illegible title.”  

  1. Be Honest on Your Employee Evaluations

Stop giving terrible employees “meets expectation” ratings on their employee evaluations.  I get it, you are trying to avoid the attitude that they will have when they see the “needs improvement.”  If you do not like their attitude, you are really going to be displeased when their lawyer asks you why you fired them for this conduct when you always scored them as “meeting your expectations” for that category.

  1. Document the “Other Stuff” Too  

            You might not want to issue discipline for every single instance of poor performance or bad conduct, but you should document it anyway.  The easiest method is to send yourself a quick e-mail using the same subject line each time.  This may feel like overkill and may also feel like you are spending your days documenting employee conduct rather than doing your actual job, but when you are dealing with a difficult employee and you think litigation could be on the horizon, you will want these details to defend the eventual suit.  A good rule of thumb is that if it is significant enough that you  address it with the employee, it is significant enough to document it.    

  1.   Be Consistent 

If something warrants discipline for one employee, it warrants discipline for everyone else.  If you are consistent in your treatment of employees, you are protecting your business from claims of disparate treatment.  

The same is true for the e-mail suggestion in #3, above.  If you are e-mailing yourself for weeks about one employee and turning a blind eye to the conduct of others, it will look like (and it sounds like) you are on a witch hunt.  Treat the employees consistently; inconsistency is the key ingredient for a claim of disparate treatment.  

  1. Bite Your Tongue

Don’t lose your cool when things get tough with an employee.  Many states are single-party recording states.  This means that in those states, your employee is lawfully able to secretly record your conversation with them.  Think about your words now because you may have to listen to that conversation again in Court in a few years.  Before you speak with an employee, think about what you will wish you said and, say that instead.   

Employment litigation requires an attention to detail.  You will be in a better position to defend claims that are brought against you when you follow these tips regarding employee discipline and documentation. 

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