Working with employers are various sizes, backgrounds, sophistication, and industries, I’ve seen a lot of confusion and simple misunderstandings about what constitutes employee discipline and how to properly document employee performance issues or discipline. This Friday’s Five addresses five common misunderstandings I’ve seen recently about employee discipline and documentation:
1. If it was not a formal write-up put in the employee’s file, then the action does not constitute disciplinary action.
There is no legal definition of what constitutes a write-up, nor is there a definition of what is required to be in an employee’s personnel file. Therefore, recollections about verbal warnings, e-mails, letters, even notes on napkins can be evidence to support an employer’s position that an employee was terminated because of performance issues. The key item employers need to remember is if the employee challenges the reason for the termination that there is support for the termination decision, either through testimony and/or documentation. The documentation can come in any form and does not have to be a formal write-up that is maintained in the employee’s personnel file. However, this is not to say that employers can do away with formal employee reviews and write-ups, these are very good practices to maintain.
2. Verbal warnings do not have to be documented.
If there is no record of verbal warnings it is very difficult to prove at a later date that the employee had been counseled about the issue. Managers should always document a verbal warning in some manner, such as in a manager’s log or even e-mailing themselves the specifics about the verbal warning. By preparing an e-mail and sending it to themselves, it creates a great time-stamped record that is excellent evidence should there ever be any litigation concerning a termination.
3. Employees have to sign disciplinary documents.
Some employers do not think a write-up for an employee is valid unless the employee signs the write-up, but this is not true. While it is a good policy to have some system that proves the employee was presented with the write-up, it is not required that the employee sign the document. Many times the employee will refuse to sign such documents because they do not agree with them. To alleviate this, some employers provide a line on the document that states the employee does not necessarily agree with the write-up, but is signing the document only to acknowledge receipt. Another method to avoid the argument that the employee never received the written warning is to email the employee. This creates a great record of when the warning was prepared and sent to the employee.
4. Employers have to follow a progressive disciplinary policy and cannot fire employees on their first offense.
While employers may choose to implement a progressive discipline policy that starts discipline with a verbal warning and progresses to a second or third written warning prior to termination. However, if using a progressive disciplinary system, employers should be careful to preserve the employee’s at-will status and reserve the right to not follow the progressive disciplinary system at is sole discretion. As long as the employee is at-will, they can be terminated at any time, even after their first small infraction of a company policy. For more information about at-will employment, click here for my previous article.
5. Disciplinary documentation should be as broad as possible.
While write-up and counseling should address the overall issue that the employee needs to improve, employers need to avoid general statements without providing specific examples. For example, instead of writing an employee up for having a poor attitude, the employer should provide a specific performance issue. The employer should document the time, date and facts of the incident. Write ups should also list the conduct that is expected of the employee in the future.