Consistency is key when firing for performance

Poor performance sounds like a legitimate reason to fire someone. That doesn’t mean the employee won’t sue. If that happens, you must be prepared to show that other em­­ployees who held the same position and had similar performance issues were also terminated. If not, you had better be able to explain why.

Recent case: Alfred was a general manager for the Golden Corral restaurant chain when he reported sexual harassment. Alfred said another manager was sexually harassing an employee.

Shortly after, Golden Corral fired Alfred for poor performance, including allegations that under his leadership, his restaurant had been unsuccessful and that profits had declined.

Alfred sued, alleging retaliation.

In pretrial discovery, he sought his predecessor’s performance reviews. He claimed that the manager he replaced also had a rocky tenure marked by declining revenue and profits. However, that manager had not been fired; instead he was merely transferred.

Golden Corral argued what happened before Alfred took the job wasn’t relevant.

The court sided with Alfred and said his case could go forward, with the opportunity to compare himself with a similarly situated employee—the former manager he had replaced. He will be able to review the old performance reviews. (Gage v. Golden Corral, 5:13-CV-132, ED NC, 2014)

Final note: Always maintain solid documentation for every employment decision such as a discharge, demotion or transfer. Include details explaining how and why you made the decision.

For example, if you transferred one manager who didn’t meet sales goals but fired another, the details should justify your decision. Perhaps their stores were located in different areas or one was recently remodeled and the other was not. Perhaps one manager was failing during a recession, but the other during boom times. Such details provide context for your decision.