Football PenaltyKevin Clark of the Wall Street Journal recently wrote an article, Management Secrets of the NFL, which offered a number of points relative to running a business. 

One point that stood out related to hiring and firing decisions. Specifically, the article noted that 12 of the 32 NFL teams have hired a new coach since the beginning of 2011.

At the front of the hiring pack has been the Miami Dolphins, which have hired seven coaches since 2000. In contrast, the Pittsburgh Steelers have had only three coaches since 1969, with eight Superbowl appearances and six wins.

Employer Considerations for Hiring and Firing Employees

Fortunately for most employers, the management or mismanagement of their company is not on full display like an NFL organization or subject to the intense scrutiny from fans and supposed pundits.

Nonetheless, hiring and firing employees deserve intense scrutiny for any number of reasons that all chip-away at a company’s bottom-line. One absolutely necessary goal for any employer, however, is to make sure an employee termination does not become a public event through the filing of an employment lawsuit, which also only multiplies the depletion of a companies resources, i.e., management time for responding to the lawsuit and money to pay for the defense of the lawsuit. 

For this reason, the more employers can do to build the case for an employee’s termination, the better off it will be going forward. Here are a few considerations employers should examine with the benefit of experienced employment counsel. 

  1. Don’t recreate history; Document it the first time around. Before you decide to fire an employee, make sure that decision has been thoroughly thought through. And equally important, has the reasons giving rise to this decision been properly documented. For example, if the reason an employee is fired is because of incompetence, don’t just take the supervisor’s word for it without more. Instead, ask for documentation of the incompetence, including dates and specific details. Such documentation will go a long way to protect your company in the future if the employee challenges your decision. 
  2. Documentation and Second Chances? Documentation may also provide an important check against a manager acting arbitrarily or to assess whether it is appropriate to give an employee a second chance. My experience is that second-chances are often not appropriate. However, if an employee’s deficiencies are documented, than such documentation can be compared to the metrics your company uses to evaluate employees in order to make an informed decision. Going back to the NFL theme that opened this post, New York Giants ignored media and fan calls to fire Tom Coughlin after his first three seasons of failing to win a playoff game. Presumably, the Giants’ management kept Coughlin based on management’s own assessment of the coaching job Coughlin had done. Two Super Bowls later, keeping Coughlin seems to be a good management decision.     
  3. Smart Documentation. The building block for the preceding point is making sure managers understand the value of documentation. So an important habit to drill into managers is that if something is not written down, then it should be assumed a judge or jury will not believe it happened. The other side of the coin, however, is that written words can’t be changed. So be sure you and your managers carefully consider how a report may be interpreted down the road, especially by a slick lawyer looking to make his or her client’s case.  


The goal for business owners their management and HR professionals should be the same as their employment lawyers when it comes to an employee termination: Imagine the worst-case scenario and then work backwards to prevent it. In terms of employee terminations, a worst case scenario is an employment discrimination lawsuit for a wrongful termination. 

But bad is never good until worse happens (Danish Proverb). And worse happens when an employment discrimination lawsuit is now being decided by a jury who is listening to spotty or inconsistent witness testimony with no supporting documentation to backup your company’s prior decision.

For more information about assessing your company’s hiring and firing procedures, management training, or responding to a termination, contact Jason M. Shinn, who is a Michigan licensed employment lawyer who regularly assist companies and individuals in responding to employment law compliance and representing in employment related lawsuits.