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New hire running into trouble right away? Document problems early and often

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in Discrimination and Harassment,Human Resources

Once in a while, the honeymoon is barely over before a new em­­ployee starts to struggle. Since every job has a learning curve, you may hesitate to terminate right away.

But you can’t ignore the problems, either. In fact, you have an obligation to document shortcomings early and often. It’s your best defense against later discrimination and retaliation claims.

Recent case: Paul Desir, who is black, was hired as a home-instruction teacher for the city of New York. All his co-workers were white.

Almost immediately, it became apparent that Desir was somewhat unreliable. His supervisors began documenting problems, including failing to accurately log his teaching hours, report absences and call in cancellations to the office.

Shortly after Desir complained about discrimination, he was fired for poor performance.

That prompted him to sue, alleging race discrimination and retaliation for complaining.

The court made quick work of his lawsuit. First, it pointed out that Desir’s white co-workers were tenured, while he was a probationary with less job protection.

Second, the court said Desir of­­fered no proof of retaliation. That was be­­cause complaints about Desir’s work predated his discrimination complaint. That meant that later criticism wasn’t tied to his complaint, but was merely a continuation of previously documented work problems. (Desir v. City of New York, No. 10-3815, 2nd Cir., 2011)

Final note: It’s a good idea to have the same person who hired a new employee terminate him if necessary. That helps dispel discrimination as a motivation.

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