Discipline, Discharge & Documentation

Why do employees file litigation claims after being terminated from an organization…revenge, vindication, money, or simply feel they weren’t treated fairly? Whatever the reason, the court costs alone can run into tens of thousands of dollars; and if you don’t have the proper documentation to defend your actions, the expense of defending such litigation can be $100,000+. A company can easily be expected to compensate a terminated employee with back pay and possible reinstatement to their position, but they may also have to pay compensatory damages or punitive damages, plus be required to pay all attorneys fees (employee’s as well as employers). Along with the financial loss of litigation, a company can be adversely affected by bad publicity and loss of credibility that may follow the case.

So how does a company lessen their liability when disciplining or terminating an employee…by keeping proper documentation!

From day one your new employee should be familiar with your basic polices (work hours, clocking in/out, overtime, vacation, sick time, discipline, etc.) They should know what the company expects of them and what they can expect from the company. There should be no surprises. It’s always a good idea to have the employee sign an acknowledgment form as confirmation they reviewed your policies.

Discipline –

Do not let your yearly performance review time be the only time you discipline an employee. Throughout the year a fair warning should be provided if there is need for improvement or a situation has occurred.

  • Verbal Warning – Have a short discussion of work-related issues and stress good points, as well as points that need attention, and what corrective action is needed (note: even though this is a verbal warning, document it in writing)
  • Written Warning – Provide a more thorough explanation of the issue and how it’s affecting the workplace or production. Listen to the employee’s side and go over suggestions or processes for improvement.

After a period of time, if no progress has been made a final warning may be warranted. At that time, make sure the final warning is in writing. Explain the reason why you have reached this point, but again, listen to the employee’s story, and go over the consequences and disciplinary action. Never allow personal feelings or relationships to interfere with your actions.

Discharge – 
Depending on the situation, consequences can range from suspension to termination. In the case of termination an investigation may be necessary. When conducting an investigation, always conduct them in a timely manner with care and respect to the employee. Meet with the employee afterward to explain your process and how you came to your decision.

Keep in mind, whether you investigate or not…

  • Never summarily discharge an employee.
  • Never jump to conclusions.
  • Be specific and be honest.
  • Give the employee a chance to explain their side.

Documentation –
Make sure you maintain complete accurate records. Adhere to company policies and review how the employee may have violated them. Document each transgression noting the date of the incident, date of the warning, and every discussion of progressive discipline – noting only facts not opinions. Documenting the entire process will help you in the event an employee makes a claim of discrimination or retaliation. You need to show that the discipline was warranted due to performance or behavior. Keep in mind other issues may come to light if you are disciplining for actions that were conducted outside the employee’s normal working hours. Look for our upcoming blog…Disciplining for Off-Duty Conduct.

After the discussion, have the employee sign an acknowledgement of the meeting. Let them know by signing they are not agreeing with the discussion or decision, just that it took place and what was reviewed.

Note: Each disciplinary situation is different. However, documenting the process never changes. If you have questions about your progressive discipline process, particularly if a termination is

involved, or how to conduct a proper investigation, contact your general counsel to discuss the situation. And remember, ”If it isn’t written down, it didn’t happen.”

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EAF members can call us at 407.260.6556 and speak with an HR Professional or our associate attorneys if they have questions about discipline, discharge or documentation.


EAF responds to hundreds of hotline calls and emails monthly. We would be happy to answer any interesting questions you may have too! Contacts us at [email protected] or 407.260.6556

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