How do we document underperformance for an employee that is “not working out”? We have only 10 employees.

HR issues can be a real headache for small businesses. It might be a good idea to take some HR classes to prepare for future HR issues. State laws vary, making it important to be aware of specific state regulations.

In most states, you can simply say “this is just not working out” and terminate the employee. This will probably let the employee qualify for unemployment benefits but is the fairest approach.

One common practice is to counsel the employee about performance and give him or her chances to improve. Each counseling session is fully documented. After three such sessions the employee can be fired. Poor performance should be measurable. Accusing a worker of “bad attitude” is too subjective. Intentional misconduct (if documented) can disqualify an employee for unemployment. California has much stricter rules for firing an employee.

It is always important to avoid the appearance of discrimination based on race, sex, age…etc when firing employees. It is also a very bad idea to accuse a worker of illegal conduct without proof. The courts are full of lawyers ready to take on such cases on contingency basis.


Hope that helps you out. =)


A note about HR laws:
Laws concerning employee treatment, benefits, hiring and firing…etc are multi-level. What this means is that there are Federal laws, state laws and sometimes local regulations that have jurisdiction over an employee. The information presented here should not be considered legal advice. Ultimately, employers with serious legal questions should consult local attorneys with expertise in worker relations.
The questions and answers presented here are based on research and data from internet sources and should not be considered the final word.

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