Tag Archives: McGrath North Attorney Aaron Clark

Top Ten Things To Cover When Documenting Performance And Discipline

performance evaluationWhen 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.

    1. 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.”
    2. 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.”
    3. 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.
    4. 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.
    5. 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.
    6. 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.
    7. 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.”
    8. 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.
    9. The notice should be dated and the author identified in the document.
    10. 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.

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What To Do When You Don’t Agree With A Doctor’s Medical Release

When an employee returns from medical leave, employers often question the employee’s “fitness” to return to duty. Most employers have written policies requiring employees to produce a medical note from their doctor releasing them back to work. However, a medical release does not always resolve the issue and the employer may have additional concerns.

For example, consider a situation I recently encountered with a client. An employee had been off work for an extended period due to depression and mental problems. He completed a medical certification and was approved for leave under the Family and Medical Leave Act (FMLA). During his absence, the employee posted numerous comments on his Facebook page which indicated that he may be suicidal and reckless. Shortly after the Facebook post, his doctor released him back to work without any restrictions. This raised serious concerns for the Company and coworkers who saw the Facebook posts.

What can the employer do under the FMLA?

Under the FMLA, the employer does not have to accept a general release to return to work. Instead, the Company can require the employee’s doctor to provide a fitness-for-duty certification. Under a fitness-for-duty certification, the employee’s doctor must specifically address the employee’s ability to perform the essential functions of his or her job. The employer can provide a list of the essential job functions and other relevant information for the doctor to consider (i.e., a copy of the Facebook post or any other recent information raising concerns about the employee’s mental stability).

There are a couple of things to note about a fitness-for-duty certification. First, the employer must have a uniform policy or practice that requires all similarly-situated employees to obtain and present the certification. Second, once the certification is completed, the employer cannot challenge the doctor’s opinion by seeking a second or third opinion. An employer may call the employee’s doctor to obtain a clarification or to authenticate the document, but cannot go any further or delay the employee’s return to work.

What are the employer’s rights under the ADA?

If the employer’s concerns are not alleviated by following the FMLA procedures, there is another option that may be available under the Americans with Disabilities Act (ADA”). An employer may require a medical examination if there is a “reasonable belief” that the employee’s ability to perform essential job functions will be impaired or if the employee poses a direct threat to health or safety. The medical examination must be job-related and be consistent with business necessity.

In order to go this route, the employer must have “reason to doubt” the employee’s ability to perform the essential job functions. For example, there could be conflicting opinions received from the employee’s doctor or other evidence casting doubt on the employee’s ability to perform his or her job. Arguably, the Facebook post in the above example may suffice. A medical exam under the ADA does not have to be performed by the employee’s own doctor. The Company can pay its own healthcare provider to conduct the evaluation.

Employers should always tread carefully when seeking medical information. Medical exams and certifications must be narrowly tailored to address only the particular injury or illness from which the employee suffers. In other words, employers need to be careful not to mandate a general physical or a certificate of “good health.” Many employers get into trouble by trying to obtain additional health information. Finally, employers must always consider whether they are consistently applying these requirements to all similarly-situated employees to avoid any claim of disparate treatment.

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Clicking The “Like” Button On Facebook Is Now A Protected Activity?

In recent years, the National Labor Relations Board (NLRB) has issued decisions that protect employees using Facebook and other social media to criticize their employers. Posting comments on Facebook and other social media may be a protected concerted activity under the National Labor Relations Act (NLRA). Evidently, the NLRB is now expanding its reach to cases where an employee simply clicks the “like” button under a Facebook post.

In the Triple Play Sports Bar case, a former employee posted on Facebook that she was upset with the sports bar because she had to pay more in income taxes than expected. She wrote on her Facebook page:

Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money… WTF!!!!!

Several employees of the sports bar commented on the post. One employee posted “I owe too. Such an a…hole.” Another employee did not comment but clicked the “like” button. When the owners of the sports bar found out about the Facebook post, they summoned the two employees into the office and confronted them about their comments. They were both fired. The employees filed charges with the NLRB alleging that they were engaged in a protected and concerted activity and the NLRB agreed.

According to the NLRB, the online discussion regarding tax liabilities was a protected concerted activity because it related to working conditions. The employee who had clicked the “like” button was merely expressing his support of others who were complaining about the employer’s handling of tax paperwork. Thus, the Company committed an unfair labor practice by discharging him from employment.

The NLRB also found that the employee who commented “I owe too” and “Such an a…hole,” had likewise engaged in a protected concerted activity. Triple Play argued that the comment was disloyal and should not be protected because the comment reflects a “sharp, public, disparaging attack upon the quality of the company’s product and its business policies, in a manner reasonably calculated to harm the company’s reputation and reduce its income.” The NLRB disagreed with Triple Play noting that the comments were made pursuant to a labor dispute and were not directed to the general public.

Where are the takeaways from all this?

  • Even without a labor union in the workplace, an employee can pursue an unfair labor practices charge under the NLRA if he or she engaged in a protected concerted activity and was subjected to adverse action.
  • Postings and communications on social media which air grievances concerning wages and conditions of employment are generally protected. In the Triple Play Sports Bar case, the employees were complaining about income tax withholding and their outrage resulting from the employer’s accounting practices.
  • Employees may be protected by simply clicking the “like” button and agreeing with comments that are critical with the way a company handles matters relating to wages or employment terms and conditions.
  • Although the NLRB will balance an employee’s right to engage in concerned activities with an employer’s right to punish employees who are disloyal, it is clear that the NLRB is granting more leeway to employees who criticize their employers and even use profanity to communicate their complaints.
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