A dentist fired an employee who wasn’t performing well. She was absent a lot, failed to chart patients correctly, and had the lowest production numbers. After months of putting up with this, the dentist sent her packing and hired a replacement employee. Six months later the dentist received a letter from an attorney threatening to sue him for wrongful termination.

This former employee is alleging that the dentist discriminated against her. The dentist contacts a professional to seek advice and his/her first question is: “What kind of documentation do you have supporting the performance problems you had with her?” Unfortunately, the dentist doesn’t have anything. The dentist says, “Who needs documentation anyway when I am an “at-will’ employer?”

The Problem
“At-will” employment is a common law doctrine that does mean that the employment relationship can be ended, by either party, at any time with or without notice and with or without reason. All states, except Montana, adopt this common law doctrine as the foundation of the employment relationship.

Nothing in the employment “at-will” doctrine states that the employer will be free of any consequences should he/she exercise his/her “at-will” rights and fire someone. The evolving nature of employment regulations has imposed hurdles that supersede the “at-will” prerogative and, thus, can result in liability for the unknowing employer.

One of these hurdles is violating an employees civil rights, i.e. protections against discrimination. More specifically, employers may not discriminate against an employee who belongs to a “protected class.” This protection takes precedence over “at-will.”

Examples of protected classes are age, gender, sex, race, color, religion, or national origin. The list of protected classes is continuously growing to include more and more protections for employees, so, in a sense, most, if not all, of your employees will likely fall into a protected class at one time or another.

In a situation like the one described above, the dentist, even in an “at-will” state, will be considered guilty until s/he can prove s/he is innocent. In other words, the dentist has “the burden of proof” to demonstrate that the termination was based on legitimate and non-discriminatory reasons.

The solution
Written records of deficient work performance or misconduct help employer’s defend against an employee’s allegation of wrongful termination. The written documentation, or Employee Counseling Memorandum, (call us for form #418) should:

• State the reason for the counseling in specific, factual, concise terms. For example, in the last two months you have been absent 10 times. The dates of these absences are May 5, 6, 15, 25, 31 and June 10, 11, 12, 20, and 21.
• Outline the specific nature of the discipline. For example, verbal warning, written warning, or suspension. If suspension, specify the duration and whether or not it is without pay.
• Describe the corrective action expected of the employee in specific, measurable terms. For example, production numbers must be at or above 30% each month.
• Warn of potential consequences if the employee fails to improve. For example, a failure to improve may result in further disciplinary action up to and including discharge.
• Include signatures and dates from all parties (employee, employer, and witness) in order to avoid “he said, she said” claims.

Do not:

• Place the employee on probation or list a probationary period (this may negate your “at-will” status)
• Put a time frame on improvement. For example, do not say “you have the next 4 weeks to improve,” or “we will re-evaluate your improvement in 4 weeks,” or anything of the sort. This, too, can negate your “at-will” status.
• Make inflammatory remarks, subjective statements, or draw conclusions which may or may not be accurate

Be sure to attach all relevant records pertinent to the disciplinary action (policies, attendance records, written statements/complaints, etc.) to the counseling form and place in the employee’s personnel file.

Conclusion
Unfortunately, in most cases like the one described above, the dentist will be found liable for discrimination and forced to pay a significant monetary award to the former employee. This doesn’t have to happen! You can choose a different, safer path by adopting our Golden Rule in Employment Compliance: “Objective documentation is the single most effective defense in any type of legal action.” Start creating that paper trail NOW!