Document rationale for termination even if you decide not to tell employee

It’s true that at-will employees can be fired for any reason or no reason at all, as long as that reason isn’t discriminatory. Many employers therefore conclude that they don’t have to tell an employee why he’s being let go.

But some even conclude they don’t have to document the reason, either. That can be a big mistake.

If the employee sues, you will have to state the reason behind the discharge, if only to counter claims that discrimination was the true reason. If you can’t provide a specific reason or come up with one after the fact, courts are going to be suspicious.

The best approach is to document the underlying reasons at the time you make the termination decision.

Recent case: After she filed a ­discrimination claim, Bonnie Barkley was not rehired as a substitute teacher. She alleged retaliation.

But the school district offered records showing that the real reason she was terminated was that she was argumentative, erratic and sometimes exhibited aggressive behavior. That was enough to counter her retaliation claim. (Barkley v. Penn Yan Central School District, No. 09-3975, 2nd Cir., 2011)

Final note: It’s a good idea to have a witness present at the discharge meeting. That way, the em­­ployee can’t later claim management told her she was being fired for a suspect reason. Include a summary of the meeting in the employee’s personnel file and have the witness sign off on the account.