We don’t often “recycle” content on our blog, but this post was too good not to share. Why reinvent the wheel when you find a perfectly great wheel right in front of you? Employee documentation is an area on which we get a ton of questions, so hopefully you find this information useful. While one of the steps involves dealing with unions (a loop through which we aren’t forced to jump in the fitness industry), the other twelve steps are solid. It’s a nice part two to the previous post we did on Communication.
Written warnings are meant to help document employee behavior or performance problems, but they can fall short. They are usually the second step, after verbal warnings, in progressive discipline policies .
When they include vague references to "insubordination" or "falsification of records" without giving the specifics of what led to discipline, or if there's too much information that doesn't relate to the behavior, then red flags go up, and employees can be confused about what sparked the warning―and then plaintiffs' attorneys can use that information in lawsuits against the employer.
Here are some recommendations on how to improve written warnings so that employees can improve their behavior, managers can better manage them—and the company can stay out of the courtroom.
1. Be specific about the offending conduct. For both the manager's and employee's benefit, include details about what exactly happened to prompt the warning. Maybe the worker didn't fully realize the seriousness of the misstep. With a warning, the employee can learn exactly how he or she missed the mark, which gives the person more of a chance to improve.
But should the employee sue, this record will be valuable. "Since courts give more weight to contemporaneous accounts of what happened than subsequent explanations articulated during litigation, it is key to include as much information as possible" about the misconduct, said Nina Maja Bergmar, an attorney with Burr & Forman in Atlanta. Explain how and why the conduct rose to the level of the stated offense. That way the company can pre-empt debates during litigation over whether there was insubordination or falsification of records.
2. Provide the real reason for the warning, not the reason that sounds better. Because discipline can lead to termination, employers sometimes provide a reason for a warning that they think sounds less confrontational. For example, they might say "personality fit" is the problem, rather than "threatened co-workers," Bergmar noted. The employee should know for certain what he or she did to prompt the warning. This promotes honest discussions within the workplace. Plus, the true reason is likely to surface in any subsequent litigation. Shifting explanations for discharge set an employer up for claims that its reasons for discipline and termination were pretext for discrimination.
3. Connect the employee's conduct to the company's policies. Clearly explain which policies the employee violated. This will help strengthen the company's defenses in the event of future litigation and ensure the policies are not flouted.
4. Describe the impact of a policy violation if the effect is readily ascertainable. For example, an employer might choose to describe the financial loss of an employee's walking off a production line, Bergmar noted. And employees should know how their actions affect their co-workers and the company at large.
5. Avoid unneeded commentary. Keep the discussion focused on the specific wrongdoing. Bringing up other matters may make it hard for the employee to focus on what's important and what he or she needs to do to get back on track. Don't go much beyond detailing a description of the offending behavior, referring to the policy violated and describing the discipline, Bergmar recommended. Additional commentary could create unnecessary liability. For example, if an employee is disciplined for failing to provide required documentation for an excused absence, the employer should avoid discussing the employee's attendance in general. "Discussing the general attendance in the write-up could be problematic because the absences may be protected by federal employment laws, and referencing the absences in the write-up makes it seem as though the employee is really being disciplined for taking federally protected leave," she explained.
6. Avoid legal conclusions. For example, if an employee is facing discipline for violating the employer's anti-harassment policy, identify the specific policy violation rather than including generalized statements about the employee harassing or discriminating against other employees. Such statements could unnecessarily offend the employee. Moreover, employers' policies often are more expansive than the law requires. "Legal conclusions regarding 'harassment,' 'discrimination' or 'retaliation' run the risk of being interpreted as [employers'] admissions of legal liability as opposed to what they really are: internal policy violations," said Ursula Kienbaum, an attorney with Ogletree Deakins in Portland, Ore.
7. Don't attach supporting documents. Providing supporting documents in addition to the warning "is almost always overkill," said Robert Boonin, an attorney with Dykema in Detroit and Ann Arbor, Mich. The examples of errors and misconduct should be placed in the personnel file or, depending on the state, in an investigative file, he stated. Don't make the interaction with the employee overly litigious. After all, the goal is for him or her to improve, and if the employee does, the working relationship will continue and even thrive. The written warning shouldn't be an obstacle to that possibility.
8. Mention previous verbal or written warnings. If there is a record of prior warnings, Kienbaum recommended, include the prior warnings if they are relatively recent—within the past five years—and "at least somewhat related" to the conduct at issue in the current discipline.
9. Ask a union representative to be present when the employee is given the warning. The warning should include signature lines for both the employee and the union steward to sign, Bergmar noted. It also should set forth the specific provisions of the collective bargaining agreement (CBA) supporting the disciplinary action, she added. For unionized employees, the employer needs to carefully check the CBA for any procedural requirements for discipline, Kienbaum said. "These can include strict timelines for issuing discipline, progressive discipline or even procedures for investigatory interviews," she stated.
10. Issue written warnings promptly. Letting bad behavior fester will only lead to more problems later. Timely warnings demonstrate that concerns are legitimate and not pretext for alleged discrimination or retaliation, said Lynne Anne Anderson, an attorney with Drinker Biddle in Florham Park, N.J.
11. Follow through with the steps outlined in the warning. If the warning states that a supervisor will have weekly follow-up meetings to monitor an employee's progress, make sure those meetings happen and are documented, said Keerthi Sugumaran, an attorney with Jackson Lewis in Boston. Similarly, if the warning states that an employee will be terminated the next time he or she engages in a particular form of misconduct, the employer should follow through with that action, unless extraordinary circumstances dictate otherwise, she noted. Send the message that follow-through is expected throughout the organization from top to bottom.
12. Give the employee the opportunity to provide a written response. This promotes good employee relations. If the employee does submit a response, HR should review it to see if any follow-up is needed, Anderson said. For example, if the comments indicate that the performance issue is due to the employee's medical condition or a situation covered by family and medical leave laws, HR should reach out to the worker to get the necessary medical documentation to determine whether the individual is eligible for Family and Medical Leave Act time off or a reasonable accommodation.
13. Ensure consistency. When issuing written warnings, employers should provide the same discipline for employees engaging in similar conduct, said O'Kelly McWilliams III, an attorney with Mintz in Washington, D.C. Otherwise, the employer may face discrimination claims and be viewed as unfair by colleagues of the disciplined worker.