In 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 reviews five common misunderstandings about 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. Likewise, there is no legal requirement of what need to be placed in an employee’s personnel file. Therefore, documentation 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, the employer has 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, as these are good practices to maintain.
2. Verbal warnings do not have to be documented.
If there is no record of a verbal warning, it is very difficult to prove later 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 e-mailing themselves the specifics about the verbal warning. By preparing an e-mail and sending it to human resources or even to himself or herself, a manager creates a great time-stamped record that is excellent evidence should there ever be any litigation concerning a termination.
3. Employees must sign disciplinary documents for them to be effective.
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. It is common that an employee will refuse to sign such documents because they do not agree with them, but this should not prevent the employer from documenting the discipline. To alleviate this issue, employers can 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. If the employee still refuses to sign the document, the manager administering the writ-up should simply record on the bottom of the document that it was presented to the employee, the date, and that the employee refused to sign.
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, which will be hard for the employee to argue was never provided to them.
4. Employers must 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. If 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-ups and performance documentation 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-up an employee for having a “poor attitude,” the employer should provide a specific performance issue, such as the employee’s response to a customer was rude and not professional and set forth what the employee said. The employer should also 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.