"She's a good employee, just going through a rough patch."
Famous last words before a performance disaster.
That "rough patch" is now month six. The "good employee" hasn't been good since January. The documentation? "We're giving her time to improve."
Most managers don't love confrontation. They hope the employee turns things around. They give verbal nudges, or none at all. The work isn't terrible, but it's not good. And then something happens: a missed deadline, a client complaint, a workplace dispute. Suddenly, leadership wants them gone.
But the personnel file? Empty. The last review? "Meets expectations." The paper trail? Nonexistent.
This article explains why letting underperformance drag on—without documentation, clarity, or follow-up—isn't just inefficient. It's dangerous.
The Legal Reality: Patience Without Paper
Courts don't care about your patience. They care about your paper trail.
When you tolerate underperformance without documenting it, you create a legal fiction: the employee was meeting expectations. After all, if they weren't, surely you would have said something. In writing. Right?
The Evidence Gap That Kills Your Case:
📄 What You Have:
Positive or generic performance reviews
No written warnings or coaching notes
Continued employment for months/years
Normal raises and bonuses
📄 What You Need:
Documented performance conversations
Clear expectations in writing
Evidence of coaching and support
Progressive discipline records
🚩 Common Pitfall 🚩
"We were being compassionate" isn't a legal defense. Undocumented patience looks exactly like satisfaction with performance.
Getting It Wrong: The Rough Patch That Wasn't
The Company: 75-employee marketing agency
The Employee: Senior account manager, formerly their best
The Timeline: 14 months of decline
The Deterioration:
Months 1-3: Going through a divorce, everyone understands
Months 4-6: Still struggling, but "she'll bounce back"
Months 7-9: Client complaints starting, but nothing documented
Months 10-12: Team resentment building, still no documentation
Month 13: Major client fires the agency
Month 14: Employee terminated
The Documentation:
Last performance review (8 months old): "Exceeds expectations"
Written warnings: Zero
Coaching documentation: None
Email trail: Only positive client feedback from two years ago
Termination letter: First mention of any performance issues
The Lawsuit:
She sued for gender and age discrimination, arguing:
Male employees weren't terminated for losing clients
She was replaced by someone 15 years younger
No documentation of performance problems
Termination was pretextual
The Settlement: Six figures, plus attorneys' fees
🔎 Audit Red Flag 🔎
When the first documentation of problems is the termination letter, judges assume discrimination.
Getting It Right: Document the Decline
You can be kind AND compliant. Compassion doesn't mean avoiding documentation.
The Monthly Reality Check
Month 1 - The First Slip:
"Hi Sarah, I wanted to follow up on our discussion about the Johnson project delay. As we discussed, going forward all client deliverables need to meet the agreed timeline. The next deadline is March 15. Please let me know if you need any support.”
Month 2 - The Pattern Emerges:
"Sarah, This is our second conversation about missed deadlines (Johnson on 2/15, Anderson on 3/10). I'm concerned about the pattern. Let's meet tomorrow to discuss what support you need. Please come prepared with your plan for the Williams project due 3/30.”
Month 3 - The Formal Warning:
"Following our meeting today about continued performance concerns, this serves as formal documentation. See attached Performance Improvement Plan with specific goals for the next 30 days.”
Why This Works:
✅ Shows you addressed issues promptly
✅ Demonstrates progressive intervention
✅ Provides evidence of support offered
✅ Creates contemporaneous record
✅ Protects against discrimination claims
⚡ Compliance Tip ⚡
Compassion means giving them a chance to improve with clear expectations. Not documenting isn't kind—it's negligent.
The SPEAK Framework: Addressing Performance Anxiety
S - See the Pattern
Don't wait for the crisis. After two instances, you have a pattern.
P - Paper the Trail
Every conversation needs a follow-up email within 24 hours.
E - Engage Directly
"Rough patch" conversations must include specific expectations.
A - Assess Progress
Weekly check-ins during performance concerns, documented.
K - Know When to Escalate
If no improvement after 30 days, move to formal discipline.
The Cultural Cancer: When One Person's "Rough Patch" Becomes Everyone's Problem
What Your Team Sees:
When you don't address performance issues:
High Performers Think:
"Why am I picking up their slack?"
"My good work doesn't matter"
"Time to update my resume"
Average Performers Think:
"I guess deadlines are optional"
"Quality doesn't really matter"
"Why try harder?"
The Underperformer Thinks:
"I'm doing fine"
"No one has complained"
"My job is secure"
🚩 Common Pitfall 🚩
Your best employees won't complain—they'll just leave. And they'll tell everyone why.
The Conversation Script: From Anxiety to Action
Stop Saying This:
❌ "How's everything going?"
❌ "Is everything okay?"
❌ "You seem off lately"
❌ "Just wanted to check in"
❌ "No rush, whenever you can"
Start Saying This:
✅ "I've noticed [specific issue] on [specific dates]"
✅ "The impact has been [specific consequence]"
✅ "Going forward, I need [specific expectation]"
✅ "By [specific date]"
✅ "Let's meet [specific time] to review progress"
The Documentation Email:
Subject: Follow-up: Performance Discussion [Date]
Hi [Name],
Per our discussion today, I'm documenting the following:
Performance Concern:
- [Specific issue with dates/examples]
Impact:
- [How this affects team/clients/business]
Expectations Going Forward:
- [Specific, measurable improvements needed]
Timeline:
- [Specific deadline for improvement]
Support Offered:
- [Resources, training, assistance available]
Next Steps:
- We'll meet on [date] to review progress
Please reply to confirm you understand these expectations.
Best,
[Manager Name]
📝 Pro Tip 📝
The email takes 5 minutes to write and saves you from 5 figures in settlement costs.
Final Thoughts: Performance Anxiety Is Real—Documentation Is the Cure
That anxiety you feel about addressing performance issues? It's real. But you know what creates more anxiety? A discrimination lawsuit with no documentation defense.
The "good employee going through a rough patch" might genuinely be struggling. They might deserve compassion, support, and time. But they also deserve clarity about expectations and honest feedback about their performance.
Documentation isn't cruel—it's clear. It protects both parties by ensuring everyone understands where they stand.
If you've been avoiding that difficult conversation because you're "giving them time," stop. Time without documentation is just delayed disaster.
Start today. Open that email. Schedule that meeting. Write that follow-up. Your future self—and your legal counsel—will thank you.
Because in employment law, performance anxiety is temporary. But documentation is forever.
Keep fighting the good fight.
