Performance Management Beyond “At-Will”: A Practical Guide

I love what I do, and I enjoy helping organizations and leaders succeed. Consider this a basic guide to performance management and documentation. If I’ve said it once, I’ve said it a thousand times: documentation is your best friend! There are no ifs, ands, or buts about it. You should also lead from a place of empathy and understanding while still doing what you have to do to protect your business. There will be moments of egregious behavior that warrant immediate termination. I won’t be talking about that here. Instead, I’ll provide guidance on best practices, recommendations for handling situations more effectively, and, honestly, what I would do—because this all comes from my experience as a Human Resources professional.

The number of times I’ve heard, “Let’s just terminate, it’s at-will,” would make your head spin. My response? Yes, it is at-will. It is also at-will to sue, and when you are sued, the burden of proof lies with you, the employer. YOU have to prove you didn’t discriminate, retaliate, or commit any other employment law violation. Do you have the documentation in place to back up your decision? Probably not if that was your opening line. Termination should not be your knee-jerk reaction to performance issues. It should also never come as a surprise to anyone that they are being terminated or why.

Sometimes, you hire someone thinking they’ll be a great fit, and after they start, you feel hiring remorse. I get it! This could be immediately obvious or take weeks or even months. Maybe it’s a personality issue. They came into the interview dressed to the nines, hiding all those terrifying personality flaws. Now? Maybe they’re egotistical, poorly mannered, arrogant, or self-important. Maybe they’re all of the above. Maybe they’re none of those things, but they oversold themselves, and now you can see they’re struggling. Maybe they’re not fitting in. What, if anything, can you do that isn’t just pulling that potentially expensive trigger? A lot, actually.

If they are a Jekyll and Hyde, document employee concerns—or your own—and pull them in for a conversation. Be prepared to provide examples of unacceptable behavior and set your expectations. Follow up with an email recapping your conversation and those expectations. Set a cadence of follow-up meetings or calls to check in.

Let’s play devil’s advocate here and ensure we’re following due process while treating employees fairly. Start by discussing the scenario as you saw or heard it and ask them why they felt this behavior was appropriate in the workplace. What drove this behavior? There may be a reasonable explanation. It could be a defense mechanism or even a completely rational (albeit unprofessional) response given the circumstances—and you might only have half (or a third) of the story.

Remember, there are always three sides to every story: yours, mine, and the truth. We all bring our biases, which skew how we view, interpret, and retell experiences. Striving to understand the whole story is vital to protecting your company.

What if they oversold themselves in the interview? This happens more often than you’d think. The real question is: Did they really oversell themselves, or are they just accustomed to doing things differently? Did you train them when they came into the role? I mean, did you REALLY train them?

If all you did was say, “You’ve done this before. Here’s your access to the system,” that kind of handoff is unacceptable. I would not support corrective action against someone who isn’t performing if that’s all the training they received. You’ve set them up for failure. Yes, I’m speaking bluntly here—and with respect, I always will.

At the very least, your initial response should be, “You’ve done this before? Great! Here’s what we have. Can you tell me what needs to be done from here?” This allows you to assess their knowledge of the process and systems. Sit with them and ensure it’s done properly. This way, you can address and correct errors before they become issues. You’re also providing training and gaining a much better understanding of your employee’s experience and potential than you ever would have in the interview.

What I truly recommend is training them regardless of the experience they claim to have. Structure a full training program—SOPs, shadowing, the works. Give them every opportunity to ask questions about why and how you do things. Maybe they have suggestions for improved processes based on their experience. Perhaps it’s annoying and cumbersome, but it ensures you are doing everything possible to help your new hire succeed. It also builds in documentation, making termination (if necessary) much faster. This process will also reveal a lot about your team—if you’ve asked someone to carry it out and they don’t or treat your new hire with anything less than the respect due to a colleague, that’s a problem. Once trained, the new hire should be shadowed as they take over responsibilities to ensure they’ve grasped the process.

Most processes are not inherently difficult once you get into them. It’s a matter of learning the nuances for each employer. If a person is open, willing, and capable of learning, you may end up with a rockstar once they get the hang of things. But you’ll never know if you don’t invest the time. If you don’t invest the time and energy, you’ll definitely be investing money in recruiting due to turnover. This all happens faster than it sounds.

If they have performance issues and you’ve trained them appropriately, you’re ahead of the game. Now, document the issue and discuss it in your next one-on-one. Talk about additional training and reset expectations. DOCUMENT. If performance issues persist, begin the corrective action process. Yes, it’s annoying. You just want to be done with this. But remember—documentation is your best friend! The more of it you have, the more likely you’ll win a wrongful termination lawsuit.

Corrective action could follow the verbal, written, and final route or involve a Performance Improvement Plan (PIP). PIPs are often misused. Some treat them as a means to an end, but a PIP should genuinely help an employee address and improve performance issues. The document should clearly outline the issues and expectations, and set the standard for what success looks like. Set a regular cadence of meetings to provide support, training, and resources. If, at the end of the PIP, they are still not meeting reasonable expectations, move forward with termination. If they succeed—great! The PIP worked. I also recommend including language stating that if performance improves but later declines within a set timeframe, the employer retains the right to terminate. This ensures clarity and serves as documentation should any disputes arise. Have the employee and issuing leader sign the PIP, and consider involving HR as a witness in case of refusal.

Not everyone does this, but I recommend recapping and sending an email to the employee after EACH coaching session, detailing what was discussed and what is expected. Document, document, document.

If you’re dealing with attendance issues, refer to your policy. Policies should clearly outline expectations and consequences—your classic “up to and including termination” language, for example. Follow your corrective action process consistently, reviewing each case individually while maintaining uniformity in how it is addressed. Also, if an otherwise good employee is suddenly struggling with performance or attendance, check in. There may be underlying issues you’re unaware of.

I always recommend regular check-ins with direct reports—checking in on both the person and their work. Document work-related discussions and send recaps to employees. This helps you stay ahead of performance issues, ensures employees feel heard, and significantly reduces claims should separation (voluntary or involuntary) occur.

Effective performance management isn’t just about documentation—it’s about fairness, consistency, and setting your employees up for success while protecting your business. If you need guidance on handling employee relations, documentation, or compliance, Innovative Foundations is here to help.

Let’s ensure your policies and practices align with best practices and legal standards. Contact us today to discuss how we can support your organization in fostering a strong, compliant, and high-performing workplace.