March 02, 2026
Documentation: Better Late Than Never?
A manager fires an employee for unsatisfactory work performance. At the termination meeting, the manager gives the employee three notices: a termination notice and two “final” warnings. The employee sues for age discrimination alleging the reason given for his discharge, pest and cleanliness issues at the restaurants he was responsible for overseeing—were a pretext for age discrimination. During the trial the manager testified that the HR representative instructed him to give the employee the final warnings concurrently with the termination notice.
The HR representative said an employee might receive a written warning along with a termination letter because “the idea is to document.” She explained that she “suppose[d] the idea of corrective action from [her] perspective is to document what has happened.” Really?
If that was all there was, I think the employer might have lost the case. Isn’t the purpose of corrective action to correct behavior? If so, how can an employee do that if he is fired the same day that the corrective action notice is issued? The employee can’t. So that might give rise to at least the appearance of an unlawful motive.
Luckily for this employer, there was enough other evidence to offset that concern and the court ruled in the employer’s favor.
Lessons learned? Avoid the risk. Reduce your potential liability. Train managers. Ask yourself, what is your purpose for issuing corrective action? Is it merely to document after the fact that you talked to an employee? Or is to help protect your investment of time and money that you have spent in hiring, training, and retaining the employee while supporting the employee in the process? I hope it is both.
