I talked about how employee handbooks are not a contract. That means an employer does not necessarily have to counsel an employee three times in writing before terminating that employee. But, a question that often comes up is why would an employer want to counsel an employee in writing? The most common reason is unemployment benefits. In most states and certainly in Texas, a worker only gets unemployment benefits if s/he can show s/he lost the job due to his/her own fault. Employers will try to claim the employee was a bad employee. The best way way for the employer to win that argument is to show write-ups documenting alleged performance issues.
And, if an employee accuses the employer of discrimination, written counseling regarding objective, non-discriminatory issues provides an effective defense. In fact, in almost all of my discrimination cases, the employer will dredge up supposed write-ups in some way. I used to firmly believe that employers could not accuse an employee of malfeasance without contemporary write-ups. I formerly was sure no jury would believe an employer was upset about an alleged offense unless the employer could produce contemporary write-ups.
So, imagine my surprise when a case I worked very hard on went to trial while I was serving in Iraq. My co-counsel lawyer told me later we lost the trial probably because the jury believed the employer’s claim they were upset with our plaintiff employees even though they had no write-ups at all to back it up. Our clients were accused essentially of not working well with others (when just the opposite was the truth). Yet, they apparently won on that one issue. I am still in recovery from that shock…..
But, it still remains a valid rule-of-thumb: if you want to show a non-discriminatory reason for a termination (or some other adverse personnel action), you better have some write-ups.