One of the most difficult things manager and supervisors have to do is tell an employee they’re doing something wrong. All too often, the situation will be ignored until it becomes such a problem that the supervisor wants to terminate the individual immediately. In this circumstance, problems are created for employers because the individual hasn’t been given an opportunity to correct the behavior or performance issue.
An employee should never be surprised when they are terminated. When an individual doesn’t know or understand why the company let them go, he or she begins to think that the reason is because of some discriminatory reason…age, gender, disability, race, etc. It is when they begin to think that they were discriminated against that former employees will pick up the phone to call the attorney who advertises on TV to see if they have enough of a case to sue your company. The argument may be made that Florida is an Employment-At-Will state, meaning that the employer or employee may choose to end the employment relationship with or without notice and with or without cause. While this is a defense to a lawsuit, it’s not necessarily a company’s best defense…especially when a lawsuit involves claims of discrimination.
Proper discipline and documentation of problematic conduct will enable the company to hold an employee accountable for their actions and to set the standard for expected behaviors and performance. This will also put the employee on notice that if they don’t improve their behavior or performance, then further discipline, up to and including termination, may occur.
Disciplinary documentation does not have to be time consuming or lengthy. A company can create a standardized form that may be used to simplify the documentation process. Here are some tips for documenting employee misconduct and performance deficiencies:
- Documentation should be timely. If an employee’s performance or behavior is below par, address it with them immediately. Make notes of the incident, including time, whether or not the incident was observed (including names of witnesses), actions taken by the supervisor to correct the situation, etc.
- Documentation should be detailed and objective. “Joe is always late” isn’t specific enough. Instead, “Joe has been late 3 times in the past 6 weeks” gives a very clear picture of the problem.
- Documentation should be consistent for all employees. All employees who exhibit similar performance or behavior problems should all receive similar write-ups for their infractions. Using the documentation process to build a case against one person can be used against the company in a lawsuit. Inconsistent documentation can be used to show proof that a person was disciplined for unlawful reasons such as age, gender, race, etc.
- Involve the employee in the documentation process. Whenever possible, allow the employee to write summaries of the supervisor-employee meeting that was held. This allows the employee to provide his or her side of the story, which makes the process fairer.
- Sign and date the disciplinary form. Both the supervisor and employee should sign the form. A statement above the employee’s signature line should indicate that the employee acknowledges that this summary was discussed with him.
- Final review. Have another supervisor or manager or human resources representative review the documentation for grammar and improper content. This review should also ensure consistency with organization policy and practice before discussing it with the employee and before the document is included in the personnel file.
Documentation is your company’s best defense in a lawsuit.
Contributed by Christine Crews, SPHR, SHRM-SCP, is Vice President of Human Resource Services for the Employers Association Forum, Inc. (EAF). EAF is a non-profit corporate membership-based association dedicated to serving the business and HR communities with world-class HR tools, hotlines & legal compliance, news & trends, surveys & economic data, benefits & insurance, risk management, training & consulting, and leadership & organizational development.
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