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:
Misconception #1: If there was no 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 needs to be placed in an employee’s personnel file. As such, 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 needs to be able to offer 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 still good practices to maintain and, if done properly, can show trends of how well the employee has performed over extended time periods.
Misconception #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 if the manager creates an email to herself this creates a great time-stamped record that is excellent evidence should there ever be any litigation concerning a termination.
Misconception #3: Employees must sign disciplinary documents.
Some employers believe a write-up or documentation is not valid unless the employee signs the write-up, but this is not true. While it is a good policy to have some system to prove 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 it, 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 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 write-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.
Misconception #4: Employers 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 our previous article.
Misconception #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.
A creative plaintiff’s lawyer can spin broad 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.
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. In providing concrete examples of how the employee did not meet expectations, it will be difficult for the employee to dispute the documentation later.