Documentation today may keep an employee's discrimination claim away -- or provide a sound defense if you listen to our labor law experts.
Eliot Wagonheim: If somebody thinks that they were fired unjustly, they will look for reasons other than their performance to explain your actions. Rochelle Eisenberg: My name is John and I was a fabulous employee and I knew what I was doing and you fired me because you didn't want a man in that job, you wanted a woman in that job, and that's the only reason you fired me. Eliot Wagonheim: They might say, "You know what, he fired me just because of my race or because of my sexual orientation or because of my religion or because I happened to be in a wheelchair." All of these reasons where the law says, no, those are not legitimate reasons for firing. In order to combat that, their personnel file is invaluable. Rochelle Eisenberg: The best way to prove it is through a documented record of problems that occurred and attempts made by the employer to have the employee remediate them. Eliot Wagonheim: What you have to do is build a personal file. Have a regular series of evaluation, once a year, once every six months, whenever it's right for your business. Have it documented. Even if you and the employee don't agree, have the employee at least sign to acknowledge that you had this evaluation conference and you did discuss certain topics. If you have a personnel file that has a record of deficient performance from the employee or insubordination or any other events which you have told that employee are troublesome, and have not been repaired, firing them is easy. Rochelle Eisenberg: The employer's response would be, "Hey! Yes, John did worked for me and he was qualified to do the work and yes, John is a man, and yes, I did hire a woman, but look, look at the record that I have here showing all the times John was late for work, the calls he didn't respond to when customers would call, the mistakes that he made, that costs us a $100,000 in billings." Eliot Wagonheim: The harder situation is where there is absolutely nothing in the way of documentation, and you just decide that you need to fire this employee. The less documentation the greater the risk is, there will be a claim, because unless the employee agrees that the firing was completely justified, they may go to a lawyer to challenge it.