Employers must document performance issues

A recent seven-figure jury verdict in Massachusetts shows that employers who encounter workers with performance issues must document those issues or leave themselves vulnerable to discrimination and wrongful-termination claims.

The employee in question, auto mechanic James Bereford, was fired at age 61 after working at a garage that was part of a regional chain for more than 30 years.

According to the employer, Bereford lost his job because of attitude problems and poor performance. Specifically, the company claimed they fired him because he actively resisted new management’s efforts to modernize garage operations. For example, he apparently refused to use vehicle maintenance software that the company installed to manage its repair services, insisting the old paper record-keeping system was more reliable. He also allegedly told the bosses, “I don’t do computers” and said he had no intention of learning how to use them.

According to Bereford, however, he never said these things. He also claimed that the employer scheduled a meeting to “talk” with him about the situation, but really planned to fire him at the meeting, which it did, claiming it was for “poor performance” and “insubordination.”

Bereford sued for age discrimination. On the surface, his case appeared thin since all but one of the six technicians at the garage was older than 40, including one in his 70s. Additionally, the manager who fired him was only 8 years younger than Bereford, who wasn’t replaced.

Still, the lack of a paper trail of discipline and warnings and the timing of his termination appear to have done the employer in. Ultimately a jury found in Beresford’s favor and awarded $1.7 million in damages, including a significant sum in punitive damages (designed to punish the employer and deter similar conduct in the future).

The lesson here is that employers must document employee issues as they arise and keep accurate, detailed files. They also need to be sure to train their managers on the issue of age discrimination.  Finally, talking to an employment lawyer before terminating an employee can go a long way, and it’s much better than needing a lawyer to defend you at trial.

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