This week's Business Week cover story bears the title "Fear of Firing" and discusses "how the threat of litigation is making companies skittish about axing problem workers." In today's lawsuit-happy world many managers will tell you that you simply can't fire poor performers any more. 

This is rubbish.  Even worse, it's a cop-out, one more way to avoid accountability. Here are some things we know for sure and some things to think about when it comes to firing people.

It's easier than ever for someone who thinks they might get fired to burrow beneath the coverage of one or more statutes and claim discrimination.  For example, the threshold for "age discrimination" is 40.  That means that every Baby Boomer in the workforce is a member of a protected class.

There is no way to guarantee that you will not be threatened with legal action if you fire someone. When I was growing up, we'd head out back and duke it over issues.  We don't do that anymore. Today we head for court.

Keeping poor performers for whatever reason is a bad idea. Last year, for example, a survey of over 34,000 workers by Sirota Survey Intelligence found that "failing to deal effectively with employees who are consistently poor performers can decrease the engagement levels of other staff members."

You can't fire people "on the spot" in most cases.  The poor performers who ultimately become the people who should get fired don't just under-perform once or come late a couple of times.  As a rule, they exhibit recurring instances of problem performance or behavior that could make the business case for firing. If this doesn't happen, you probably don't have a case for firing.

It's the supervisor's job to counsel, correct, and document. If that gets done right, the business case for firing is usually made. But a huge number of supervisors simply don't do the job of performance evaluation and documentation that's necessary to fire someone fairly and defend that firing effectively.  Here's why.

Most supervisors treat the performance evaluation as a once-a-year bureaucratic necessity.  Wrong! Performance evaluation should be a daily occurrence.  That way you spot problems when they're small and give people a chance to correct performance or behavior. If they don't do that, then documentation is called for.

Most supervisors don't understand why they should document. You document so you can justify your actions and decisions to someone else at a later time.  That someone else may be the attorney of the person you fired or the jury hearing his or her complaint.  Your documentation had better be good.

Most supervisors don't know when to document. You let people know when you're going to start documenting specific behavior or performance.  People don't like to be surprised with a fat file later and, besides, letting people know that you're going to document is often enough for them to change.

Most supervisors don't know how to document effectively. Your documentation needs to be as close in time to the incident being documented as possible. It needs to be specific about performance or behavior. Attitudes and motivation can't be seen and therefore shouldn't be "documented."

Most supervisors don't act as if documentation is part of a process. At the end of it, if firing is the right thing, you'll have a fat file of support material that displays your reasons for firing and the ways you worked to help your employee improve.  You should also be at a point where no one, including the employee, is surprised if firing happens.

Admittedly, this is not easy. It requires discipline and attention to detail. But that's not the big reason you won't find supervisors doing it. 

The big reason is that they don't know how.  In most organizations, we don't promote people based on their ability and willingness to confront others about behavior.  Then we don't train them in how to do that essential task or evaluate them on how well they do it.  So we shouldn't be surprised that the job doesn’t get done.

If you need to fire the people who deserve it, without tying everyone up in court for months, you need to select supervisors who can do their job.  You need to train those supervisors in how to do their job. To help them find out, you can use my book, Performance Talk: The One-on-One Part of Leadership that covers this material in detail.

And then, oh bosses of supervisors, you need to hold them accountable for how they do their job. There's no guarantee you won't get sued, but you'll have your defense ready if you do.

Wally Bock has helped people learn to be great bosses for more than a quarter century. His latest book, Performance Talk: The One-on-One Part of Leadership, makes learning key leadership principles almost effortless by teaching through a story and providing lists of resources for further growth.

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