We want to terminate an employee, Silvie. She just isn't being a good team player. Any suggestions?

Termination is the riskiest employment decision an employer can make. That said, terminations are often necessary, despite the risk.

One way to manage the risk of termination is to make sure you have a documented, factual basis for discharging an employee.

You could tell Silvie she isn't being "a good team member" and write that in her personnel file – but that would not be sufficient documentation. That is your conclusion, your feelings, your personal belief. Terminating an employee because they are not a "team player" will not play well in front of a jury. It is vague and subjective. You stated nothing factual to support a termination.

What is missing is supportive facts, specifically facts regarding the harm Silvie's actions or inactions caused. For example, a documented termination reason might be:

We are terminating Silvie because she failed to inform others in the organization of an action she was going to take on behalf of a client to make sure the product met the terms of the client's contract in every way. This action should have, and traditionally does, involve, and require, the input of others in our organization with different skills and education. Silvie's failure to include, and work with, other employees resulted in:

Here, you can fill in the blank, depending on the result(s):

·      We lost the client (documentable)

·      The client is very disappointed (documented in emails)

·      Other employees spent hours they don't have remedying the deliverable – hours that would not have been necessary had Silvie informed and worked with others ahead of the scheduled product delivery time (documentable)

Or worse ...

·      The client has sued us for breach of contract (definitely, documents are involved now). 

Bottom Line:

Effective documentation means the results or the impact of a "failure to be a team player" on clients, on your organization, and on other employees is included.

No matter the performance shortcoming or policy violation being used as the basis for a termination, always include a statement about the actual effect the behavior had on others and/or the project.

Jack McCalmon, Leslie Zieren, and Emily Brodzinski are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.

If you have a question that you would like Jack McCalmon, Leslie Zieren, or Emily Brodzinski to consider for this column, please submit it to ask@mccalmon.com. Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.