There are some amazing opening lines in literature, “Call me Ishmael,” in Moby Dick, and “It was the best of times, it was the worst of times,” in A Tale of Two Cities. But, “you’re fired,” while memorable, isn’t quite as clever and simply doesn’t have the same resonance. Quite frankly, it shouldn’t. Employee discussions and documentation, while an art form, shouldn’t be dramatic, complex, or leave you wondering what is happening in a cliff hanger ending. Documentation needs to be specific, concrete, and limited to the purpose at hand.
When to document
When you should create documentation depends very much on the purpose as well as your corporate culture. Some companies document every issue, including verbal warnings; some have no documentation at all.
Iowa has a handful of statutes which indicate that written policies must be created for certain items, such as how wages are paid, and how vacation is accrued, paid, or lost. If the employer drug tests, the drug testing policy must be clearly written and published to the employees. There are very few Iowa requirements for written conditions of employment.
Written notice documentation
A common question is if an employer must provide the employee written notice upon termination. Iowa, unlike some other states, such as New York, has no requirement to provide written notice of termination. A simple verbal, “we are ending your employment, effective immediately,” is all you need unless you have a contract or policy that requires written notice.
While it doesn’t need to be a written a notice of termination, you should provide an employee with some reason for the termination itself. Recognizing Iowa as an employment-at-will-state, meaning you can fire anybody for any or no reason, doesn’t mean you should fire someone and not tell them why. No one is willing to accept, “you’re fired and I don’t have to tell you why.” This would be an absolute trigger for future litigation or administrative complaints and filings. A simple reason should be given, such as “we have discussed performance issues and continue to have concerns, recently you had issues in _________.”
Unlike Moby Dick, it is not a duel to the death on the open sea with hundreds of pages to fill. Terminations should be basic and simple. You do not need to encourage debate, recriminations or therapy sessions. Keep it simple. Basically, terminations are a four-part formula:
- There have been issues which we have discussed with you before.
- Here is an example of one of the most recent issues.
- We are ending your employment effective immediately.
- You will receive a letter with benefit continuation or other information relating to the end of your employment.
Certainly, one thing that must be written and provided at the time of termination is COBRA notification. You are required to provide the employee COBRA notification or other state benefit continuation notification where applicable. This should be done in writing and mailed by Certified Mail.
New workers’ compensation documentation requirements
Other items within the “must document” category, which includes policies about accruing vacation and benefit continuation, are the requirements related to the new rules on workers’ compensation. These changes relate to suitable work or recall. When an employer offers an employee suitable work within the employee’s workers’ compensation restrictions and the employee refuses the offer, under the new law, certain benefits may be denied including healing benefits or total partial disability.
The law specifically requires that, “the employer shall communicate an offer of temporary work to the employee in writing.” The offer must include details of lodging, meals, and transportation, if any are provided to the employee, and must state that if the employee intends to refuse the offer of temporary work, that the refusal must be in writing and the employee must provide the reason for the refusal. The notice should also state that if refused, the employee may not be compensated for Temporary Partial Disability, Temporary Total Disability or healing period benefits during the period of the refusal.
Not required but best practice
Other items should be documented, although frequently they are not. While there is no legal requirement to put discipline, performance improvement plans, and other documentation of this type in writing, it serves the employer well to have written documentation of disciplinary actions, performance expectations, and for its job descriptions to be current, accurate, and in writing.
Job descriptions form the core of most inquiries about whether an employer is engaged in the appropriate reasonable accommodation process and whether a job function, which an employee can no longer perform is an essential job function. Without a written job description, it can be more difficult for the employer to demonstrate an essential job function is not a pre-text for discrimination.
For disciplinary issues, direct, concrete and specific disciplinary action that indicates the employee can be terminated for future problems should be documented. This is useful not only in defending any Iowa Civil Rights Commission or EEOC Claim, but also in a workers’ compensation defense.
In general, employees rarely remember that they have been told certain behaviors are inappropriate or will end up getting them fired. Being able to show written documentation about the counseling can be critical for any employer.
Keep your documentation simple: include the date, who is giving the counseling, who is receiving the counseling, the reason why, and a concrete example.
When done properly, well-crafted documentation starting with applications and including policies and performance improvement plans forms a solid foundation for a defense against employee questions, concerns or claims. See also previous posts on issues specifically applicable to Iowa public employers, the importance of well-written job descriptions, employee evaluations, and severance agreements.
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