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Terminating without giving a specific reason? Document rationale for the record, regardless

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in Firing,FMLA Guidelines

Many employers don’t like to provide specific reasons for firing someone. Instead, they simply tell the employee that he is being terminated from his at-will employment.

Don’t take that as an excuse not to document the reason you are terminating the employee. If he sues, you had better have an explanation that dates from the time you made the decision.

Recent case: Paul Kosierowski was deputy chief of the Bexar County Corrections Department. His supervisors believed he was revoking too many inmates’ probation and parole sentences. This was contrary to a push for more public involvement in deciding the circumstances under which convicted criminals would be released back into the community.

At the time, his supervisors knew he was about to take FMLA leave for hernia surgery. The county decided to hold off on firing Kosierowski until he recovered. However, his supervisors carefully documented their reasons at the time.

Kosierowski returned and got a letter informing him he was being discharged from his at-will position. It offered no specific reason for his dismissal. He sued, alleging FMLA violations.

In court, the county presented its legitimate reasons for terminating Kosierowski. He argued that those were just a pretext to fire him. He told the court that adding reasons at this stage was the same as making them up.

The court disagreed, pointing out that county documents showed when the decision was made and why. (Kosierowski v. Fitzgerald, No. 09-CV-584, WD TX, 2011)

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