Waiting is the Hardest Part: Don’t Fire Poor Performer Without Keeping Good Records

December 30, 2019

Sooner or later, all employers will experience a poor performer. Ideally, struggling employees will improve through your efforts to train, review, coach and reward good performance. But some don’t improve, and you must ultimately grapple with terminating them. Before doing so, it is critical to confirm that written job evaluations accurately document the individual’s performance. If you don’t, you’ve missed an opportunity to develop the primary defense against a potential wrongful discharge claim; written reviews establish a legitimate basis for discharge. Where the records are inadequate, your best option is to postpone termination until you can establish an accurate account of the person’s performance.

Despite Employer’s Good Intentions, Many Employees Don’t Get Regular Written Reviews

Ideally, employees are routinely and accurately reviewed. This means managers (1) meet with them, (2) discuss their performance, and (3) accurately describe it in writing that is signed by the employee and placed in their personnel file. Often, this is not what happens.

Despite good intentions, many employers fail to ensure that all employees receive regular written reviews. And even if regular reviews occur, managers may fail to record poor performance adequately. It’s human nature – managers want to be liked, too. In some cases, not only do the reviews fail to mention performance issues, but the employee may have received raises and even bonuses despite the subpar performance.

It’s also human nature for employers to tolerate poor performers long past the time it has become obvious that attempts to improve them aren’t working. Terminating employees is never an easy job, and employers don’t relish doing it. Therefore, firing decisions are often put off until something occurs that pushes the employer over the edge. Suddenly, a boss who has tolerated months or even years of subpar performance, wants the employee discharged immediately.

That’s when you need to be careful and sometimes, patient.

Wrongful Discharge Claims Can Represent a Significant Risk

While Wisconsin is an “at will” employment state, meaning you can terminate an employee at any time, state and federal laws provide employees with the right to file claims if they believe a negative employment decision violated the standards. For example, if disgruntled ex-employees want to assert a claim of wrongful discharge, they have many kinds of discrimination on which to attempt to base it.

The Wisconsin Fair Employment Act includes age, race, religion, color, disability, marital status, sex, national origin, ancestry, arrest record, conviction record and military service among the forms of actionable discrimination. Employees who file discrimination claims can seek a wide range of damages including reinstatement, back pay, front pay, compensatory and punitive damages and attorney’s fees. Defending the claims can take many months, or even years, and require significant expenditures of the employer’s time and money.

Burden Shifts to Employer to Show Legitimate Reason for Discharge

What makes documenting an employee’s performance so critical is that when an employee alleges wrongful termination, the burden of proof shifts to the employer to show the stated reason for the firing is in fact poor performance (and wasn’t cited merely as a pretext, or cover-up for the alleged discrimination).

The primary and most persuasive evidence of the employee’s performance is the written review. If the reviews are either nonexistent or perhaps worse, fail to document the employee’s work failings, you’re saddled with the awkward and unpersuasive argument that poor performance was the legitimate basis for the termination even though your own records don’t support the contention.

Create Accurate Records of Performance

Because employment reviews are often lacking, what can you do when a subpar employee pushes you over the edge? The answer is not what many employers want to hear:

  • You should postpone the termination until the poor performance can be properly documented. If employees are reviewed annually, this approach may be quite onerous, depending on where the employee is in the review cycle.
  • Alternatively, you can document poor performance as it occurs and supplement the personnel file. But to persuasively rebut a disgruntled employees’ wrongful discharge claim, the record must be of sufficient duration to be plausible, particularly when annual reviews up to that point have been positive.

Another difficult scenario is where an employee’s productivity is good, but he is a problem employee for other reasons. For example, his behavior may be disruptive or passive-aggressive to the extent that it overshadows his productivity. Take care to document not just productivity but also other relevant factors such as attitude or getting along well with others, so that the written review reflects the whole picture.

Bottom Line

In dealing with poor performers, your best defense to a wrongful termination claim is conducting evaluations that accurately document their performance. If you’re considering letting a poor performer go, but the employee’s personnel file contains inadequate documentation, you should postpone the decision until an accurate record can be established.

This article, slightly modified to note recent updates, was featured in the January 2020 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

For more information about "Waiting is the Hardest Part: Don’t Fire Poor Performer Without Keeping Good Records," contact David C. McCormack at dmccormack@axley.com or 262.244.9093.