The wrong measure
Most founders believe their performance management system works if employees are getting reviewed. That is the wrong measure. The measure that matters is whether the record the system creates would hold up in a wrongful termination or discrimination claim. Not whether reviews happen on schedule, but whether the record tells a clear, consistent 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 lays the foundation for a discrimination claim. The inconsistency suggests documentation decisions are subjective, that the record reflects the relationship between manager and employee rather than an objective standard.
Specific, observable criteria
The most common documentation failure in growing companies is subjective language. "Attitude problems." "Not a culture fit." "Does not meet expectations." None of those says anything concrete. What they do is make a termination look pretextual, meaning the stated reason appears to cover for the real one. Defensible documentation names what was expected, what was produced, and the gap between them.
Progressive documentation before the termination conversation
A termination that is not preceded by a documented performance history looks like a decision made for reasons other than performance. Conversations that were never documented are very hard to prove later. The file is the record. If it is not in the file, assume you cannot rely on it.
Once an employee reports discrimination or other misconduct, timing becomes the center of the story. Performance documentation created after a complaint is viewed with skepticism by investigators, mediators, and juries. Documentation created before, consistently and specifically across employees at the same level, is the employer's strongest position.
See EEOC Enforcement Guidance on Retaliation and Related Issues (2016)Separation between documentation and protected activity
If an employee filed a complaint, took FMLA leave, requested an ADA accommodation, or engaged in other protected activity, and performance documentation appeared or intensified afterward, the timing itself becomes evidence. A termination that follows protected activity needs a stronger, earlier record of the performance basis. That standard cannot be met after the fact.
What to document in a termination meeting
The date, time, and location. Who was present. The specific reason given, using the same language as the documentation that preceded it. The employee's response, without editorializing. Final pay, benefits continuation, and return of company property. The termination record closes the file and should be consistent with everything before it, not a new narrative.