The wrong measure
Most founders believe their performance management system is working if employees are getting reviewed. That is the wrong measure. The measure that matters is whether the record your performance system creates would be defensible in a wrongful termination or discrimination claim. Not whether reviews happen on schedule. Whether the record they produce tells a clear, consistent, legally sound story about every employment decision made in the last two years.
Consistency across similarly situated employees
A manager who documents performance concerns for one employee and not for another doing the same work at the same level produces the foundation of a discrimination claim. The inconsistency proves that documentation decisions are subjective — that the record reflects the relationship between the manager and the employee rather than the objective performance standard.
Specific, observable criteria
The most common documentation failure in growth-stage companies is subjective language. “Attitude problems.” “Not a culture fit.” “Does not meet expectations.” None of those mean anything in a legal context. What they do is make the termination look pretextual — meaning the stated reason appears to be a cover for the actual reason. Defensible documentation names what was expected, what was produced, and the gap between them.
Progressive documentation before the termination conversation
A termination not preceded by a documented performance history looks like a decision made for reasons other than performance. If the file does not show them, the file does not support the termination. Verbal conversations that were never documented do not exist in a legal context. The file is the record. If it is not in the file, it did not happen.
Employment attorneys analyzing post-trial records in discrimination cases identify a consistent pattern: once an employee reports discrimination, timing becomes the central piece of the story. Performance documentation created after a complaint is filed is viewed with skepticism by investigators, mediators, and juries. Documentation created before — consistently, specifically, across all employees at the same level — is the employer’s strongest defense.
EEOC Enforcement Guidance on Retaliation 2016 · National Employment Law Practice Analysis 2024Separation between documentation and protected activity
If an employee filed a complaint, took FMLA leave, requested an ADA accommodation, or engaged in any other protected activity — and performance documentation appeared or intensified after that protected activity — the timing is evidence. A termination that follows protected activity requires stronger documentation of the performance basis. That standard cannot be met after the fact.
What to document in a termination meeting
Document the date, time, and location. Who was present. The specific reason given — using the same language as the documentation record that preceded it. The employee’s response, without editorializing. Final pay, benefits continuation, and return of company property. The termination meeting documentation closes the file. It should be consistent with everything that preceded it — not a new narrative.
Key Data Points
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