Today's HR Daily Advisor Tip:

Terminations: Can Managers Really Be that Stupid? March 12, 2008

Managers often want to know why they need documentation to fire an "at-will" employee. Simple, says today's expert. Without it, you'll end up in court explaining why your managers are so stupid that they fire people for no reason.

In theory, with at-will employees, either party can terminate the employment arrangement:

--At any time
--For any reason or no reason
--With or without prior notice

And that always leads managers to think that they can terminate for no reason without documentation. If the question were purely the at-will question, says Attorney Jonathan Segal, that might be right, but it's usually not that simple.

The former employee will charge discrimination, for example. The manager will say, "Well, he was an at-will employee and I fired him for no reason." Or, "I fired him for wearing argyle socks." Now the judge and jury have to decide, did the manager really fire the employee for no reason or for his socks, or was the termination a form of discrimination?

Neither judge nor jury is likely to believe the manager was stupid enough to fire for no reason or for a goofy reason, so now you're in trouble, says Segal. You've got to spend your time in court trying to prove to the jury that your managers really are that stupid.

The upshot is that while documentation might not be legally required, it is clearly legally recommended. Segal, a partner with Wolf Block in Philadelphia, made his comments in the HR Manager's Legal Reporter.

Why You Can't Fire at Will

Segal cites several reasons (in addition to the "stupid manager" scenario) why you shouldn't just fire, and why documentation and progressive discipline are important even for at-will employees.

1. Fairness to the employee. It's good business and good for morale and reputation to treat people fairly.

2. Cost to the business. It's almost always cheaper to help an employee to improve than to start over with a new hire.

3. Decrease in likelihood of a claim. Employees who have been through a progressive discipline process are less likely to contact an attorney, and if they do, the attorney is less likely to take the case.

4. Decrease in exposure during litigation. With clear documentation, you are more likely to prevail in a lawsuit. You will be able to clearly demonstrate that the employee violated the rules, and that you gave the employee every chance to improve.

The main message is that while progressive discipline and documentation are not legally required, they are legally beneficial, he says.

Failure to carefully document discipline remains one of the biggest legal problems that employers face, says Segal. Lawsuits that should never have been brought appear on your desk, and lawsuits that should have been easily dismissed are often hard to fight, because poor documentation dooms the employer's defense.

And perhaps the biggest impediment to documentation is supervisor reluctance. It's not because they are lazy-they just don't know where to begin. (After all, you didn't hire them because they were great writers.)

In the next issue of the Advisor, we'll offer Segal's tips for overcoming supervisor reluctance, and we'll introduce a supervisor training program that covers documentation and a host of other key supervisor responsibilities.