I know I write frequently about the importance of documentation. There is a reason for that! It will save you grief, heartache and money. Here is yet another reason why documentation is important.
Attorney Christopher Ward, of Foley & Lardner LLP, makes the point that a successful defense of a lawsuit often depends on when a decision was made and who made the decision. A number of circumstances surround the decision to terminate an employee sometimes delaying the implementation of a decision. As a result of the delay the person doesn’t get fired right away and there then becomes an opportunity for other factors to be introduced that may alter the way in which the termination is handles. Case in point involves a termination of someone for sleeping on the job. The company did not terminate the employee immediately which allowed the employee to come back with a diagnosis of narcolepsy thus creating an ADAAA situation.
The company in its defense argued that the HR manager had made the recommendation for termination before knowing of the disability claim, but the company did not pull the trigger until after the claim. They did not engage in the interactive process for accommodation. The court found that even though the company said it had intended to terminate the employee based on sleeping on the job it had not actually made it clear they were going to terminate until after the disability notification. At that point the termination was too late and a new regimen of termination steps was required.
According to Ward this case points out that “if a decision to terminate has been made, the employer should immediately document the fact of that decision and the identity of the decision-maker” even if that decision is not made effective immediately. While this evidence may not save you entirely it may lessen the damages if you can show that a termination decision was made based upon performance facts before any protected category information was revealed.
I agree with Ward’s conclusion “Just as we constantly exhort managers and supervisors to document performance problems, it should be equally important to document the timing of disciplinary and termination decisions independent of the timing of delivery of the actual discipline to the employee.”