Employers need to remember these five key rules for documenting and providing feedback on employee performance:
1. For at-will employees, there is no legal obligation for employers to provide three warnings to employees prior to a termination.
Some employers have the misconception that employees must be given three warnings prior to being terminated. This is not the case, as long as the company has maintained the employee’s at-will status.
2. Get employee feedback during counseling.
Employees are more likely to ultimately accept critical performance reviews if their feedback is heard. This does not mean that the employer must agree with the employee’s feedback, but just that the employer is considering their feedback in the decision-making process and the employee is not being prejudged. A good example on how obtaining the employee’s feedback avoided a potentially embarrassing situation and harming a relationship with the employee was noted in an article by SHRM (“How to Create Bulletproof Documentation”). The article recalled a situation when a manager wanted to discipline an employee for being late to her new position in the company. But prior to issuing the discipline, the HR manager asked the manager to seek clarification from the employee about why she was late. The manager followed the advice, and it turned out that the employee’s tardiness was a result of employee providing training to the replacement at her prior position in the company.
3. Send confirming emails to avoid misunderstandings and to document conversations.
After having a conversation with an employee, it is recommended to follow-up with conversation with a confirming email. The confirming email provides two benefits: it clearly sets forth what the manager’s criticism and expectation for how the employee must improve, as well as documents the date and what was said during the conversation. Yes, managers are busy and this is hard to develop as a practice, but keep in mind that the confirming email can be short and to the point. In addition, if the manager does not have time to send the email that day, while it is best to send the confirming email as soon as possible, it is still better sending the confirming email a couple of days after the conversation.
4. Avoid vague language like “bad attitude” or “failure to get along with other employees.”
One of the hardest issues as a litigator is defending a wrongful termination claim when the documentation provided to the employee contains vague criticisms of the employee’s performance. Managers should avoid at all costs performance reviews that the employee has a “bad attitude.” If litigation ensues, and the company is forced to defend its decision to terminate the employee, vague statements like this do not clearly establish the reasons for the termination. Instead, a creative plaintiff’s lawyer can spin this language as evidence to support their allegation that the reason was based on the employee’s complaint, race, gender or age. A good practice is to use concrete examples in the performance review, such as:
- You were 25 minutes late today.
- Your conduct towards your coworker was unacceptable today when you informed Mr. Jones that “it was not your job to help him and he should know how to do these tasks by now.” You are expected to assist others in all aspects of their job, and to the extent they need additional help, you need to provide assistance to ensure that the customer’s needs are met.
- You did not provide adequate customer service last Tuesday when you ignored the customer’s request for help in retrieving a different size three times.
5. Employees do not have to sign performance reviews to make them “official.”
Another common misconception is that employees must sign performance reviews in order for the review to have any effect. While it is a good practice to have employees sign performance reviews to avoid any disputes that they were never shown the performance review, it is no legal requirement to have the employee sign the document. Employees often object to signing documents criticizing their performance. There are two potential responses to this objection: 1) have the employee’s acknowledgment clearly state that the employee’s signature is only acknowledging receipt of the document, not agreeing with the content, or 2) if the employee simply refuses to sign, have the manager or a witness sign and date the document with a notation that the document was provided to the employee and he or she refused to sign.
Also remember that write-ups and documentation do not have to be on any “official” forms. Managers sometimes feel that they must wait until they can officially document an employee’s performance on the company’s official form. However, managers need to be trained on how to document performance and it must be made clear to them that while the company’s forms are preferred, documentation can be done on many formats, such as: e-mail to oneself or to HR, the manager’s log, any paper available, or even electronically on any other company device. I personally like when managers send emails to themselves documenting conversations with employees. Given the data associated with e-mails, such as time and date created, e-mails are excellent documentation of a manager’s conversation with an employee about performance issues. Managers should also be reminded that they need to document verbal warnings in some manner – if the verbals are not documented, it is as if they never occurred.