Earlier this week I had “one of those conversations” with Clint, an HR manager who was fairly exasperated. His major complaint? Management keeps setting up the company for a lawsuit by skipping necessary documentation for behavioral problems.
The adage, if you haven’t heard it by now, is “if you didn’t document it, it didn’t happen.” And that’s true. The Department of Labor does not like people being fired without a company following its own termination policies and creating a paper trail along the way.
I recall an acquaintance firing an employee without any documentation of the poor performance. The next week the former employee wandered down to the unemployment line, saying, “I had no idea what I was doing wrong, and I have no idea why I was fired.” My acquaintance was about to be sued for wrongful termination until he found a few notes in a company logbook mentioning how he had counseled the errant employee.
This problem is widespread. The most common excuse I hear is “I can’t afford the time to document poor performance. I have a business to run.” The response of those who have learned the hard way: “You can’t afford NOT to document it.”
The easiest way to document poor performance is through regular performance reviews. Weak performance documented over time is valid reason for dismissal if no improvement is shown. The problem creeps in when performance reviews are fluffed up and glossed over.
Clint, my HR manager friend, says this is a huge problem at his company. “Nobody wants to write a bad performance review,” he says. “But when they want to fire someone, they want me to magically find a loophole to fire them. They’re just begging for a lawsuit.”
Apparently his company has been sued for wrongful termination on more than one occasion. “They’re just shooting themselves in the foot,” Clint says. “If they’d just document the poor performance, they wouldn’t have this problem.”
One of the main difficulties in documenting poor performance is failing to produce standard operating procedures or create clear job expectations, and therefore managers have little to stand on when issuing a formal criticism.
Yes, writing expectations takes work.
Yes, it takes away from production time.
Yes, it is not urgent.
Yes, it is very important.
As a side benefit, creating written expectations and job descriptions goes beyond protecting oneself from lawsuits. The process of thinking through what is expected of the various positions in your operation creates a clear picture in your mind of the ideal workplace. And the clearer you can see it in your mind, the easier it is to create in reality.
That wonderful benefit aside, I can’t emphasize enough the importance of creating accurate performance reviews and documenting poor performance. After all, even if you have clearly written expectations, if employees are not notified in writing of not meeting standards, and no evidence of counseling appears in their files, then terminating poorly performing employees might cost you more than you care to think.
Take the time. Make the effort. Document. Document. Document. In this day and age, it’s part of being a good manager.
Think about the ripple effect of giving a pass to poor performers. You’re shooting yourself in the foot if you use the “can’t afford the time” excuse. In reality, you can’t afford not to.