Excerpted from Louisiana Employment Law Letter, written by attorneys at the law firm Jones Walker

We can't stress how important it is to properly document an employee's performance problems. For instance, have you ever needed to fire someone for poor performance or behavioral problems but didn't because she was hinting that she had a discrimination claim? Or a disability? Or because she was out of the office on protected leave? Has keeping her on the payroll caused more trouble for your company?

A recent federal appeals court decision shows how proper documentation can back up your decision to fire someone even when she has exercised certain protected rights.

Company reorganization reveals supervisor's deficiencies

A supervisor in charge of billing and collections was informed that her employer would be moving the billing and collections function to a different location because of a reorganization. As part of that reorganization, the company hired a consulting firm to evaluate ongoing problems in the billing and collections department. The consultant pointed out deficiencies in the supervisor's performance as well as problems with her staff. Her performance problems were documented, but they continued.

Several months later, the supervisor requested and was granted two months' leave under the Family and Medical Leave Act (FMLA) to undergo surgery. While she was out on leave, her duties were contracted out to a company specializing in billing and collections. The company hired to perform her duties also was tasked with offering suggestions on how to improve the department. "Serious deficiencies" were discovered in the supervisor's performance, and a list of the problems was given to her manager.

The day after the supervisor returned from FMLA leave, her manager gave her a written warning listing the problems with her department and explaining the corrective actions that needed to be taken. About two months later, the supervisor took another week of leave to have more surgery. After she returned, her manager reviewed her file and discovered that she hadn't taken any of the corrective actions. The manager told her that she had a week to take the appropriate actions to correct the problems. Because she didn't, she was fired.

Documentation helps company defeat retaliation claim

The supervisor sued her former employer in federal court in New Orleans, claiming it retaliated against her for taking FMLA-protected leave. The company asked the court to dismiss the case, arguing it had legitimate reasons for firing the supervisor. The court agreed and threw out the case, and the employee appealed that decision.

In determining whether the lower court made the correct decision, the appeals court reviewed the company's evidence showing that there were problems with the supervisor's performance before, during, and after she took FMLA leave. She had been counseled for poor performance two months before she went on leave the first time. While she was on leave, the company hired to improve her department uncovered several problems with her performance. After she returned from leave, she didn't take any steps to cure the problems caused by her performance deficiencies. Based on the employer's documentation, the appeals court concluded the lower court was correct in deciding she was fired for legitimate reasons.

After the company presented its reasons for firing her, the supervisor tried to show that they weren't the true reasons and that she was really fired for taking FMLA leave. She gave various explanations for her performance deficiencies, arguing that several problems were created while she was on leave and were out of her control. The court agreed that she had raised a question about whether the company's reasons for firing her were true, but it still determined that she couldn't show she was retaliated against for exercising her FMLA rights. As a result, it also gave its blessing to that decision by the lower court. Dutton v. University Healthcare System, L.C., No. 04-30554 (5th Cir., April 29, 2005).

Don't get stuck between a rock and a hard place

If you need to fire someone for performance or behavioral problems, having a record to prove that your decision was justified can save you a lot of hassle in the long run. That doesn't mean you should counsel someone and then fire her a week later. You should be documenting your employees' performance problems consistently.

Don't wait to write everything down until you're at your wits' end. Document every real problem so that when the time comes, you can show you attempted to help the employee improve her performance. After all, isn't that the overall goal? Having a great defense for a lawsuit is just lagniappe (n : a small gift - especially one given by a merchant to a customer who makes a purchase).

Copyright © 2005 M. Lee Smith Publishers LLC. This article is an excerpt from LOUISIANA EMPLOYMENT LAW LETTER. Louisiana Employment Law Letter does not attempt to offer solutions to individual problems but rather to provide information about current developments in Louisiana employment law. Questions about individual problems should be addressed to the employment law attorney of your choice. The State Bar of Louisiana does not designate attorneys as board certified in labor law.