Be Nice, Be Honest or Pay – How to Separate the Poor Performer from the Others

By Kelly Schoening Holden, Dressman Benzinger LaVelle psc

An employee should never reasonably be surprised at a termination for poor job performance. The adage ‘hire slow and fire fast’ applies to new employees but not so much to longer-term employees. Employees should be provided a chance to improve and provided with the necessary tools to do so.

All coaching and/or counselling needs to be documented. In an ideal world, the manager would also have the employee sign. Documentation needs to be factual in nature. Documentation should have the date (including year), the author, and facts about the meeting and who was in attendance. It should be written contemporaneously to the event.

Job evaluations are a great tool when actually done correctly. An evaluation of someone’s performance needs to involve honest feedback. If an employee is not meeting expectations, it is only fair to explain the reasons, along with goals for improvement. Employees often assume performance is fine unless told otherwise.

The timing of a termination is crucial. If the employee has recently filed a worker’s compensation claim, FMLA leave, a harassment complaint, etc., the employer should wait to take action. Proximity in time to a protected activity can be enough for the employee to get the claim to a jury.

The termination meeting should be attended by the manager and a representative from HR. A written letter of termination is advisable so there is no question over the basis for the termination. It is best to provide the reason for termination of employment to the employee. Allow the employee to clean out his/her own desk to avoid claims of theft or conversion for missing property.

A severance agreement should be strongly considered when the termination is for poor performance. The agreement should be written in compliance with the ADEA and the Older Worker’s Benefit Protection Act as well.

There is no guarantee of preventing a lawsuit, EEOC or other type of claim. However, companies should put themselves in the best position to defend claims when necessary.

Kelly Schoening Holden

Kelly Schoening Holden

Dressman Benzinger LaVelle psc, Crestview Hills, KY, USA
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Kelly Schoening Holden is a partner with Dressman, Benzinger Lavelle psc,a full-service law firm with offices in Cincinnati, Ohio, and Crestview Hills and Louisville, Kentucky. Recognised as a Super Lawyer for Employment & Labor, Kelly represents private and public employers on all facets of employment law, advising them on compliance issues and training on such issues. Kelly has experience working with the EEOC, DOL, DOJ, as well as litigating cases in federal and state courts. She also drafts employment and non-compete agreements, with an emphasis on health care provider and physician agreements.

Published: Winter 2017 l Photo: Vasyl -

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