You must have clear rules in place for making personnel decisions—and you must follow those rules consistently. With good documentation, you then are able to show exactly how and when you made your decision.
That can sometimes make the difference between a dismissed lawsuit and litigation.
Recent case: Jacques Durr is a Swiss doctor who worked under a temporary appointment to the U.S. Department of Veterans Affairs (VA). He was temporary because only U.S. citizens are eligible for permanent appointments.
Durr eventually became a naturalized citizen and requested transfer to a permanent appointment. That would require him to serve a two-year probationary period. The VA approved his request.
About two years later, Durr was fired. He sued, alleging that a full two years had passed since the initial status change was recommended.
The VA said that all its handbooks and policies made clear that an appointment isn’t effective until all departments have approved the request. In this case, that meant Durr was fired before his two-year probation ended.
The court said the VA was right. Its rules said all signatures were required and the VA had dated signatures showing it followed its own rules. (Durr v. Shinseki, No. 10-11490, 11th Cir., 2011)
Final note: It is a good practice to use a check-sheet for employment decisions, showing all steps of the process. Then prepare a cover memo detailing the final decision and its effective date. Include proof showing when and how you informed the employee.
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