HR & Compliance Practice Management |12 min read

Coaching and Termination – HR AMA With Paul Edwards (August 2023)

Last updated December 15, 2023

HR Tuesday - Ask Paul Edwards Anything!

Hello AADOM Tribe! Welcome back to the monthly LIVE Ask Me Anything with Paul Edwards, CEDR CEO & Founder, and Heather Colicchio, founder and president of AADOM. Anytime you are feeling like a little extra perspective or help might be nice to have throughout the year, you can submit your toughest HR questions to Paul and CEDR’s team of HR professionals. Our team will pick from the submitted dozens and do our absolute best to give some effective and creative ideas for solving your issue. To submit your questions, click here…Click to open link in a new tab…!

All your daily human resource issues likely have some state, federal, or local employment laws that you must comply with while, at the same time, we know you are trying to find the best human way to solve the core problem. In this series, we will fit the two together and help you all devise some great resolutions.

Here are three of your best submissions this month:

I’ve been coaching someone on and off for the past 6 months, and they haven’t improved. Is there some timeline for when coaching documentation expires regarding termination? Or can I use the coaching documents from when I first started coaching them to support this decision also?
Should I be putting timelines on how long an employee has to improve on something I coached them on?
Am I legally required to have a witness present for a termination meeting? Should I record the meeting?

Let’s Get to Your Questions

Question: I’ve been coaching someone on and off for the past 6 months, and they haven’t improved. Is there some timeline for when coaching documentation expires regarding termination? Or can I use the coaching documents from when I first started coaching them to support this decision also?

The legal side of things: There’s only an “expiration” date if you set one via a poorly written or borrowed policy, which is a practice we commonly coach managers to step away from once they become CEDR members.

If your last coaching documentation is from January, and you want to terminate them for that same issue in June, it can look a little suspect if nothing else has been documented for the last six months.

For those of you thinking or who have been taught that you don’t need documentation or to give a supportable reason for termination: being an at-will employer…Click to open link in a new tab… might give you the impression that you can terminate someone without a specific reason. Still, the reality is that no one ever fires an employee for absolutely no reason.

Additionally, if you don’t have ongoing documentation to show a history of performance or behavioral problems, the employee might (in the interim) enter into a protected class…Click to open link in a new tab…, or (in the end) come up with their own reason for the termination, which could be something like discrimination…Click to open link in a new tab…. That’s why consistent documentation is crucial for employers. It is also the reason why old documentation is not great, but it is better than nothing.

The goal is to create a documented history of how an employee has performed, improving or not, at your practice over time. This way, if an employee consistently shows performance or behavioral issues and you decide termination is the best solution, you’ll have recent documentation to back up your reasons for letting them go. On a personal level, as a manager, documentation also helps me to get over the emotional hump of realizing that I have to let someone go.

The human approach: We’ve said that there’s not necessarily an expiration on your documentation but also that the timing of your coaching documentation matters. So how do those two things work together?

Let’s take an example:

You write Brian up for not charting something again, or perhaps he’s failing to input something properly that is causing insurance billing delays. He keeps screwing up one thing or another and doesn’t improve much. You get to the point in June where you’ve had it and want to let him go. Terminating for the original write-up months ago is not ideal but it is better than nothing.

Here’s the tricky part. The fact pattern that old documentation is being used raises the question of why you let it go for so long without formally addressing it again or terminating sooner.

If you are a CEDR member connecting with our team of experts for help with this termination, we will ask why nothing else has been said about this issue since January. And, is there anything else that has been going on with this employee? What is that something else?

For example, if in May Brian filed a workers’ compensation claim or raised a question about whether overtime was paid properly, that means he’s done some things that carry legal protections. He can’t legally be terminated in retaliation for doing either of those things.

In that case, it may appear that you are firing Brian in response to the protected activity rather than the multitude of other issues.

Firing him for the other documented problems in June, when you’ve not shown any concern about it since January, can be handing Brian’s employment law attorney a really easy case for wrongful termination.

The takeaway is that when we as managers fail to act in a timely manner, all sorts of unforeseen things can happen in the interim, which can then throw a monkey wrench in our best-laid plans to do something about Brian finally!

If you’re not a member of CEDR yet, we still want you to be well-equipped to deal with a situation like this. That’s why we’re offering free template forms to help you document performance issues and informal conversations like one-on-one meetings with your employees. We’ve got th following:

We also have helpful guidance to walk you through employee separations and coaching, including:

Question: Should I be putting timelines on how long an employee has to improve on something I coached them on?

The legal side of things: A timeline sounds great, doesn’t it? “We need you to improve this by X date.” Clear-cut and easy! It’s called a PIP plan and we will address it shortly.

By creating a timeline (PIP), you can completely tie your hands from taking further disciplinary action against this employee or even terminating them. This is because you’ve told Brian they have a designated time period in which to improve.

On your end, that’s not actually what you want. You want them to fix whatever needs correcting immediately. Even if it’s going to take time and it usually does, you still want to see immediate efforts being taken. And, if things go more south for any reason, you want to be able to manage and make decisions (like a decision to terminate) without waiting for that designated period to run out.

Even with at-will disclaimers, and special ones for the cases of MT and CT where there are some extra laws around that, you can be tying your hands. You don’t want to do that.

The human approach: Here’s the deal: we most commonly see these timelines put in place when the manager writes out a Performance Improvement Plan, or PIP for short. Here at CEDR, we help with disciplinary documentation all the time, but we never do it as a PIP.

The goal of coaching an employee should be twofold: documenting what’s going on and helping them improve and succeed. A PIP typically doesn’t meet either of those goals.

We’ve already addressed issues with the restrictive PIP documentation above. But an extended timeline, within a PIP or not, also hinders the second goal of employee success.

Most employees see a PIP as a sign that their days are (literally) numbered. Instead of having open conversations with their manager and working together to improve, they often start preparing for the worst and end up causing more harm than good. “You suck; you better improve; let’s work together for the next 30-60-90 days and then check in to see how you are doing!” Does that sound like it is going to work?

Whether it is your intent or not, a PIP is telegraphing to the employee that you have an established timeline for firing them unless they can cross a cumbersome barrier of proving why they should keep their job.

Very often, what the employee does instead of focusing on what needs to be improved is focusing on the perceived ultimatum. They call their friends for help, they call lawyers, and they look for new jobs. They are in panic mode rather than doing what you want them to do, which is to focus on what they need to improve on to succeed. It’s kind of simple and doesn’t need a plan, “Just put the damn info in the chart, Brian! And please, I beg you, get this right starting tomorrow.” The urgency is now.

What you want, when talking to an employee about their performance or behavior…Click to open link in a new tab…, is to show them that you want them to succeed with you and that you are invested in their growth. Tell them what you see as a problem, why that matters and impacts others, and what they can do to improve.

Do you have an HR question for Paul? Submit your HR questions for Paul to discuss on the next HR Tuesday LiveCast here…Click to open link in a new tab…!

Question: Am I legally required to have a witness present for a termination meeting? Should I record the meeting?

The legal side of things: Legally, no, you are not required to have a witness present for a termination meeting. However, for legal reasons, you should.

Terminations are unpredictable. It could be a quick 2-minute conversation, or it could be a 15-minute screaming match.

Even more unpredictable is how the terminated employee describes that conversation after the fact. Suddenly you’re being accused of physically threatening the person or telling them they’re being fired because they’re pregnant.

If no one was there to back up your description of what happened, you could have had a difficult he-said-she-said situation.

We have many stories. In one of them, an employee stood up from the doctor’s private office and dashed out to sit at her computer and started deleting records and appointments. The Doctor, doing what any sane person would do, gently pushed her in her rolling chair away from the computer and made it so she could not get around him. The next day the police showed up to talk to the doctor about assaulting the employee. He was accused of pushing and shoving her until she left. Fortunately, the doctor had a witness, and the police were able to investigate but decided not to press charges. It was a happy ending but think about what it might have been like had it just been the two of them there alone.

The human approach: In an ideal situation, you’d want someone as a witness or at least nearby who won’t aggravate the employee further. The witness doesn’t need to participate in the actual firing conversation. Their role is to provide support if the terminated employee later claims you acted inappropriately, accuses you of giving an illegal reason for the termination, or twists the facts. And if things get out of hand, having a witness present may help calm the situation down because the person knows there is a witness.

Finding someone to fill this role in a small business can be tricky for some practices but you are an AADOM manager! We know how much some doctors don’t want to be there when this stuff happens, but they need to step up and be there for you and be the witness or let you fill that role.

If you don’t have anyone, try to inform someone you need them to help but not be involved and ask them to stay nearby during the conversation. Keep the door open, and make sure the employee being terminated has a clear path to exit, minimizing any potential risks. Also, carefully review the protocols outlined in CEDR’s FREE Separation Guide…Click to open link in a new tab…. (Make sure you lock that computer system down, managers.)

Remember, having a witness present is mainly about having someone who can back up your version of events if things go sour. Without a witness, it can turn into a he-said-she-said situation if the employee decides to make a claim against you or your business later on.

Terminations come with their own set of risks, and that’s why we ALWAYS recommend working with an HR expert when considering a termination. It’s better to be prepared and proactive rather than scrambling to deal with the aftermath in the heat of the moment.

If you’re a CEDR member facing a potential termination, contact us to ensure you have all the necessary documentation and your business is protected before the meeting.

And if you’re not a CEDR member yet, don’t worry. We’ve got you covered with free resources to help you navigate terminations at your business, like the Separation Guide…Click to open link in a new tab…, Termination Checklist…Click to open link in a new tab…, and Exit Interview Form…Click to open link in a new tab….

Click here to learn more about membership…Click to open link in a new tab… or schedule a quick call to discuss becoming a member…Click to open link in a new tab….

Remember, HR TUESDAY DEPENDS ON THE AADOM TRIBE, ASKING GREAT HR-RELATED QUESTIONS! Submit your HR questions for Paul to discuss on the next HR Tuesday LiveCast here…Click to open link in a new tab…!