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August 28, 2013

A Good Reason to Document!

The law firm Ogletree Deakins recently reported on a 4th U.S. Circuit Court of Appeals case that illustrates just how important it is to have good documentation.  The case, Mercer v. The Arc of Prince Georges County, Inc., sheds new light on performance reviews, the Family and Medical Leave Act (FMLA), and termination of employment.

According to the records, Mercer worked for “The Arc,” a nonprofit organization, in a position that required her to process applications, renewals, and redeterminations for benefits under the Food Stamp Program and Social Security.  Early in 2009, Mercer took medical leave, which put co-workers in a position to perform her duties, where they discovered that some individuals that were food stamp eligible were not receiving benefits.  When Mercer returned, she was instructed to take care of those clients.

Several months later, she was given her annual performance appraisal, in which she rated ‘satisfactory’ marks in all categories, but one, which was rated ‘above average.’  A couple months after that, the problem of individuals still not receiving their benefits came to light, yet again.  She was directed to take care of those clients.

Early in January, 2011, she suffered injuries in a motor vehicle accident and utilized FMLA.  Again, co-workers found that her job was not being done properly and that many individuals were still not receiving their benefits.  After her return, an investigation ensued and she was subsequently terminated.

Mercer alleged that The Arc interfered with her right to use FMLA and that her termination was a pretext for retaliation based upon her use of FMLA.  She was unable to prove either claim.  Of interest to employers is that the Court’s findings demonstrated that even though she had positive performance reviews, this “did not negate The Arc’s ability to terminate her employment upon the discovery of previously unknown poor performance, even though that evidence came to light during Mercer’s FMLA leave.”  Helpful, too, was The Arc had detailed documentation that specifically noted the errors of Mercer.  Another fact of note is that the co-workers who discovered the unpaid clients, were not the decision-makers in regard to her termination.

The importance of concise documentation can never be minimized.  Employers do well to document dates, times, specific information of the indiscretion/errors, all parties responsible, and persons making the discovery.  Arming themselves with proper documentation has saved many employers a lot of time, money, and unfavorable publicity.

 

Source:  Danaher, Maria, Ogletree Deakins – Pittsburgh Office. “Positive performance reviews do not negate employer’s ability to fire employee upon discovery of previously unknown poor performance.”  August 19, 2013.

http://www.employmentlawmatters.net/2013/08/articles/fmla/positive-performance-reviews-do-not-negate-employers-ability-to-fire-employee-upon-discovery-of-previously-unknown-poor-performance/

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