Face it: One of these days, a disgruntled former employee will sue your organization. You can’t predict which one—or for what reason. That’s one of the most important reasons to keep detailed and meticulous records on. You want to be ready to show that your former employee was terminated for good cause and nothing else.
Recent case: Ebony Lubarsky was hired as an hourly employee at a law firm. She performed administrative tasks, assisted on litigation projects and generally helped paralegals and attorneys work on cases.
According to law firm records, serious problems with Lubarsky’s work arose almost immediately. She was rated 2 on a scale of 1 to 5, with 5 being the highest score. Her review stated that Lubarsky “needs to work on her timeskills. She tends to take on more than she can handle and she refuses to take responsibility for her mistakes.”
In addition, Lubarsky frequently missed taking her meal break, which meant the firm had to pay overtime and penalties.
To help her improve, the firm assigned her a paralegal mentor. The mentor also noted problems with her work and provided a scathing assessment of one project that she had worked on for months.
Soon after, Lubarsky accused the mentor of sexual harassment. The firm investigated, but none of the witnesses Lubarsky named supported her claims. The firm closed the matter and transferred Lubarsky.
When her performance did not improve, she was fired. Lubarsky sued, alleging sexual harassment.
The court quickly dismissed the case, pointing out that she could offer no evidence supporting her claim, but that the firm had plenty of evidence showing she wasn’t meeting its reasonable performance expectations. (Lubarsky v. Latham & Watkins, No. HO35099, Court of Appeal of California, 6th Appellate District, 2011)
- Quiz for managers: Documenting performance
- Probe all complaints; even positive review can trigger retaliation claim
- Caution on mandatory arbitration! Decisions almost impossible to overturn
- Remind supervisors: Constructive criticism is expected--not an excuse for employees to sue
- Promote staff volunteerism, but not for firm's benefit