When employment claims and lawsuits are filed against employers, corrective actions and discipline records become key pieces of evidence. It goes without saying that a supervisor will have a difficult time convincing a jury that an employee deserved to be terminated if the underlying conduct is not properly documented. Judges and juries generally distrust employers who fire their employees without warning or without written proof that the employee was treated fairly under the circumstances.
Performance and discipline documentation should notify and educate the employee regarding the employer’s expectations. When drafting these documents, supervisors and HR managers need to consider a secondary audience. This audience consists of lawyers, judges, juries and administrative agencies who may later be called upon to evaluate the fairness of the employer’s actions.
Adopting good documentation practices will not necessarily prevent a lawsuit from being filed; however, it will put the employer in the best possible position to defend the claim. Here are the top 10 things that a supervisor or HR manager should try to document when addressing job performance and discipline issues in the workplace.
- Identify the standard or rule violated and state why the rule exists and how it was communicated to the employee. For example, a discipline notice might state “You have failed to wear your personal protective equipment which is designed to protect you from serious injury. You have been instructed multiple times regarding this requirement which is spelled out in the Company’s safety policy and reviewed during safety training.”
- If applicable, explain how the employee’s conduct negatively impacts the employer. Suppose an employee fails to timely contact the employer to report an absence, the discipline notice might advise that “your failure to properly notify the Company regarding your absences places a burden on your supervisor and your fellow coworkers who are required to cover your work.”
- Describe the facts and events supporting the violation of Company policy. You should summarize the relevant facts including any findings from your investigation regarding the employee’s conduct.
- Identify any previous counseling or discipline given. In the notice, you should specifically identify the date and nature of any prior counseling or discipline issued to the employee. You can also attach this documentation as part of the write-up.
- Document the employee’s response to the issue. If the employee acknowledges that he or she violated Company policy, you should record this fact in the discipline notice.
- State your future expectations and counsel employee on how to correct the problem. For example, if an employee had a verbal confrontation with a coworker, the employee might be instructed to treat coworkers in a professional and courteous manner and contact a supervisor before confronting another coworker.
- Clearly state the consequences for additional violations. If the worker commits a serious infraction, the notice may state that “additional violations of this policy will result in your immediate termination from employment.”
- If applicable, document any assistance offered or provided by the Company to correct the problem. For example, if the employee committed a safety infraction, the employer may instruct the employee to attend additional safety training to ensure that he or she understands the Company’s expectations.
- The notice should be dated and the author identified in the document.
- The notice should also be presented and signed by the employee. If the employee refuses to sign, the employer should note the date and time the notice was presented and the fact that the employee refused to sign.
Bottom Line: Performance and discipline documentation should demonstrate that the employee was treated fairly by the Company. An employee should never be surprised when he or she reaches the final step in the discipline process resulting in termination. Every performance record or document should be created with an understanding that it will be discoverable if a lawsuit is filed.