But You Didn’t Document

“I recently terminated Sam, my employee. I had several discussions with him about his performance but he didn’t listen and improve. He said I couldn’t fire him since I hadn’t written him up. Is that true?”

Your HR Survival Tip

While it can greatly reduce your risks if there is documentation to back up your decisions, it is not legally required. California is an at-will state and you should have an at-will statement in your Employee Handbook and offer letters. This is simply a reminder that the employment relationship can be ended at any time and for any reason by you or the employee, with or without notice.

Ideally, you want to let employees know if there is a problem. Even though you had several discussions with Sam about his performance, you don’t know if he understood the level of your concerns. Both of you benefit if you confirm Sam’s understanding. Consider:

  • Writing a brief summary of the conversation and expectations and give it to Sam, with a final sentence saying “if this is not what you believe we discussed and agreed upon, please let me know.”

  • Asking Sam to write a summary of your discussion and give it to you. This is an even better way of ensuring he understood.

  • Creating a detailed performance document, explaining the problems, solutions, and deadlines. Then go over it verbally, and in detail, with Sam. Ask Sam questions so he must interact with you during this conversation.

  • Making sure your verbal conversation and/or written documentation includes “lack of improvement may result in disciplinary action, up to and including termination” when previous attempts to correct Sam’s work have not been working.

Ultimately, the point of having the documentation is to provide proof of your efforts to improve Sam’s performance and, at the same time, help Sam better understand what you want so he makes an effort to meet your expectations. Providing both verbal and written performance feedback uses two of the most common learning techniques so you’ve dramatically improved Sam’s chances of success. While managers often don’t want to take the time to document, working to improve an employee’s performance is usually less costly in terms of time and money than having to recruit, hire, and train a new person.

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