Documentation of Employee Performance Issues

By Barrie Gross

I have an employee who has not been performing well, but I have no documentation of the problems. Can I still fire him?

Generally speaking, documentation of performance issues is not required unless an employer has a policy or practice that requires it. But that doesn't fully answer the question because there are many reasons why employers may not want to terminate an employee without having a full written record of the performance issues.

If an employee is terminated and sues for wrongful termination, an employer will need the documentation as part of the legal defense to help show that the employer did not act arbitrarily. Even if the employee was employed "at will," things can happen during an employment relationship to undermine at-will employment. In that case, an employer will need to show that it had legitimate reasons to terminate the employee. And documentation of performance issues and conversations with the employee about it are some of the best proof.