When a supervisor says a subordinate is not performing well, make sure empirical evidence backs up that opinion. Supervisors must document errors preferably with actual copies of the erroneous work if that’s possible. That means keeping memos, e-mails and other paperwork you may need later to add credence to the supervisors’ opinions.
In addition, direct anyone who had to deal with the employee’s to make notes. If supervisors are called later to testify in court, notes will help them remember the details.
Recent case: When Larry Thomas, who is black, was fired from his job as a trainer with the U.S. Department of Veteran Affairs (VA), he did what many discharged employees do—he filed a discrimination lawsuit. In it, he claimed he had been fired because of his race, and not because of poor performance, as his former employer asserted.
To prove race discrimination, Thomas had to show that the stated reason for his discharge was not the true reason—that the employer’s reason was unworthy of credence.
He couldn’t do that after the VA brought in e-mails showing countless grammatical errors. In addition, a co-worker testified that all of Thomas’ training material had to be reviewed by other staff members before Thomas could make a presentation. Other employees testified that his spelling was “really atrocious,” and his language skills “almost nonexistent.”
While Thomas, like many employees, may not have wanted to acknowledge his poor skills, that didn’t mean his employer had to put up with his substandard work. The court dismissed the case. (Thomas v. Nicholson, No. 07-13527, 11th Cir., 2008)
Final note: Good documentation wins lawsuits. Don't rely on memory—get it in writing as it happens or soon after.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- 10 Secrets to an Effective Performance Review
- Time off for church TV?
- Employers: 'Keep Out!' Beware intruding in employee web sites
- Small employers: Always check to see if you're too small to be sued under Title VII
- Tick, Tock. Watch the (Retaliation) Clock