How to Legally Justify Employee Termination

By Paul Falcone

In the world of wrongful termination litigation, there’s a tremendous distinction between an individual’s performance review and any progressive disciplinary or corrective action documents that the worker may have received. Picture this presentation of evidence as if you were a jury member: Table A contains the ex-employee’s past four performance reviews, and Table B contains the corrective action documents that led up to the individual’s termination for cause. Which table contains more relevant information relating to the justification for termination?

Clearly, the answer is both, but you need to understand how a plaintiff attorney (representing the ex-employee) would present the evidence on both tables to a jury. A plaintiff attorney would likely describe the evidence on Table A – historical performance reviews – as “battleships.” Battleships are humongous, displace tons and tons of water, and cover (i.e., validate) an entire year’s performance. Four consecutive performance reviews therefore carry lots of weight in the courtroom. Corrective action documents like written and final written warnings, in comparison, are the equivalent of “PT boats” that may only describe one bad day in the office or a temporary lapse in judgment. In short, plaintiffs’ lawyers will always argue that battleships trump PT boats, and the documentation on Table A should outweigh the written warnings on Table B in the eyes of the jury in terms of the consistent messages communicated by the employer over the years.

While that argument has merit, the defense attorney (representing your company) will explain that the purpose of those written and final written warnings was to break the chain of positive performance evaluations on record and reverse the documentation trail that, up until that point, hadn’t been problematic. In other words, those corrective action notices created the proper and responsible record to ensure that the worker knew there was a problem, was given the tools and a reasonable amount of time in which to fix the problem, and understood that the consequences of not providing immediate and sustained improvement could result in dismissal. Those are the key elements of “workplace due process,” and the defense attorney will surely argue that the more recent notices of corrective action should trump the historical performance reviews on record.

Whenever possible, supervisors want to have consistency between the annual review score (e.g., “not meeting expectations”) and corrective action history. Here’s how it might look in terms of the ideal record and paper trail: Table A

Result: Termination may occur at any point after the failed annual review for failure to meet company performance expectations. The record of the final written warning plus failed annual review sends a consistent message that the individual is not meeting performance expectations and his job may be in immediate jeopardy of being lost. Unfortunately, many front-line leaders inflate performance review scores because they want their employees to receive a merit increase or bonus (which is typically tied to the performance review score). Their guilt and mistaken intentions of awarding a “meets expectations” score during the annual review—despite the final written warning or other issues on record—creates the following scenario:

Table B

However, when a request is made to terminate the worker in March or April, guess what? It’s much more difficult to do so because the last formal document on record—the battleship in the metaphor we’ve been using—confirms that the individual met company expectations in the previous year. That over-inflated performance review score documented that, despite the multiple problems from August through December, the employee’s overall contribution to the company outweighed the problems, and the entire performance year was validated.

The result? Further progressive disciplinary documentation is now warranted to correct the formal written record that you, the front-line leader, established for fear of de-motivating the individual or otherwise eliminating his chances of receiving a merit increase or bonus. What’s the lesson here for the supervisors in your organization? Not only should they work with HR and/or their senior management team whenever an employee isn’t performing up to standard to ensure that corrective action is appropriately administered at the time of occurrence, but they also need to ensure consistency with the annual performance review score.

To do so, follow a simple litmus test when doling out “Overall Scores” at the end of employees’ annual performance reviews: If you have any remote hesitation about an individual’s ability to make it in your department or company in the upcoming year because of sub par job performance or other issues, then grade the individual as “not meeting expectations” in the “Overall Score” section at the end of the performance appraisal form. To do anything less will significantly weaken your ability to terminate cleanly or otherwise jeopardize the record you’re creating to ensure you’ve accorded the individual with workplace due process.

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