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Your Questions (Dec. 2018)
December 06, 2018
Parsons Behle & Latimer Legal Briefings

One of our employees has been failing to meet our standards for the past three months. We have spoken with him about his performance several times, but the discussions weren’t documented. Is it too late to document his past performance deficiencies before we proceed with termination?

A:  Documenting employee performance issues does provide a potential defense to a future employment lawsuit, as it shows the steps you have taken to help the employee be successful and that the employee was on notice of the consequences for not meeting the standards.  While you are not prohibited from documenting the past issues now, you run the risk of losing credibility before the court if the documentation is not thorough or correct.  Of course, contemporaneously documenting employee performance discussions limits the risk of these reports being challenged in court as self-serving or inaccurate. 

Q: A female employee has accused a male subordinate of not respecting her authority because of her gender. The male employee says he has been falsely accused and is very angry. What should we do?

A: Your company should investigate the issue promptly and take appropriate disciplinary action against either if a valid claim exists.  Not taking any action could lead to potential vicarious liability for either: 1) retaliation, if the male employee faces an adverse employment decision in the future, or 2) harassment, if the situation should escalate and an intimidating or hostile work environment is created. 


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