The Importance of Documenting Performance: It Never Gets Old

In too many cases, managers (and HR) are slow to document employee performance, yet fast to discipline and terminate.

As the following case shows, if you plan to fire an employee for misconduct and insubordination, a court won’t look kindly on that gaping hole in the employee’s personnel file. No documentation can quickly look like discrimination. Read on …

Case in Point: Addiel, a hotel chef, was not a stellar employee. He allegedly used profanity at work, made disrespectful comments to his boss and was often tardy.

The restaurant, however, failed to cite any of these bad behaviors in Addiel’s personnel file.

On top of that, the restaurant’s general manager of human resources allegedly told Addiel, “You are no longer capable to work at the line because you are old” and that she was going to hire a new head chef. Addiel said he heard other ageist comments and was eventually fired.  

Performance Review D

Addiel sued his employer under the Age Discrimination in Employment Act (ADEA). The employer argued that Addiel deserved to be terminated based on his misconduct.

Result: The appeals court ruled in favor of Addiel, saying the company’s records revealed “significant gaps and inconsistencies” because they claimed Addiel was terminated based on poor performance and conduct, but there were no such records in his file.

Plus, the court said, the company failed to follow its own progressive discipline policy, which required a step-by-step approach from a verbal warning up to discipline—all based on documented misconduct. (Soto-Feliciano v. Villa Cofresi Hotels, Inc., 1st Cir., No. 13-2296, 2/20/15)

3 Lessons Learned … Without Going to Court

  1. Focus on performance immediately. Ignoring underperformance and having no written record of it killed the employer’s defense that the employee deserved discipline.
  2. If you have a progressive disciplinary process, you must follow it. When you skip steps in your discipline policy, it shifts the court’s focus onto your  noncompliance with policies. This takes the focus off the employee, where it should be in such cases. Note: Your discipline policy should allow you to skip right to termination in extreme cases of misconduct, like stealing from the company.
  3. The ADEA isn’t new. The law has been around since 1967… but it never gets old. Companies should train their managers on how to prevent age bias—and not using ageist comments comes first.