Working Together

Most employment lawyers will tell you that more cases are won and lost due to documentation (or the lack thereof) than any other factor. This is because  juries typically will only believe employers if they “put it in writing.”  Conversely, when it comes down to the employer’s word against the employee’s word, an employer without a thoroughly documented file will probably lose, because juries like to have tangible documentation to hang their hat on when deciding a case.

Unfortunately, it is not uncommon for employers to find themselves in the predicament of defending the termination of an employee with a history of sub-standard job performance, but lacking the written documentation to substantiate the performance deficiencies. As defense counsel for employers, this is analogous to going into a boxing match with one arm tied behind your back.  Notwithstanding that most HR professionals and managers recognize and understand the critical importance of effective documentation, documenting employee discipline remains a challenge for many employers.  Here are some tips to help you ensure that you have appropriate and effective documentation to support your defense:

Be Consistent.

Be sure that you are applying disciplinary action in a fair and consistent manner. If Mary is not disciplined for returning from her lunch break 10 minutes late, then you would be hard pressed to write-up another employee for this same violation.  Discipline should be imposed on a consistent and objective basis.

Be Thorough and Specific.

Use objective terms that actually describe the performance issue, and avoid vague, subjective criticisms. For example, criticisms such as “not a team player,” “doesn’t fit in well,” or “fails to follow procedures,” are not helpful because you need to provide additional information so that the reader (i.e., the jury or the judge) gets the full picture.  For example, as opposed to simply writing that “Bill doesn’t follow procedures,” you should state that “Bill has been repeatedly told that client requisitions must be filled out on-line and submitted to accounting on the same business day when they are received.  Bill on three occasions has submitted the requisitions the next business day after he received them.  This has resulted in an unnecessary delay in getting the client the needed items.”

Fully Analyze Performance Problems.

When documenting sub-standard job performance, it is critical for the employee to understand your expectations. Furthermore, if the employee is not meeting these expectations, you should try to find out what is impeding the employee from doing so.  Has the supervisor provided adequate training?  Has the employee received adequate supervision and does he or she have the necessary equipment and skills to adequately perform the job?  Generally, with the exception of a termination of employment, one of the primary goals of corrective discipline is to improve performance and correct a problem.  To do this, both the employee and the supervisor must get to the heart of the matter and understand the reason behind the sub-standard performance.

Don’t Go Over the Top.

 Keep control over your emotions and avoid sarcasm. An effective disciplinary write-up clearly addresses three points.  First, it states the problem, and explains the gravity and implications of the problem.  Second, it outlines the corrective action that is being taken.  Third, it provides the employee with a clear understanding of the expected standard of performance, and the consequences of continued failure to meet those standards.  It’s not necessary – in fact, it’s counterproductive – to sound sarcastic or angry in a disciplinary memo.

Set Clear Goals and Objectives.

Many performance problems arise because supervisors fail to set clear goals and objectives.  Employees must be given a clear identification of their job standards.  Furthermore, employees feel more integral to their organization if they understand how their specific job or role impacts other employees, their department, and the organization as a whole.

Avoid Common Mistakes.

• Don’t Use Legalese and Jargon - Use plain and clear language.
• Don’t Procrastinate - Document personnel matters as they occur. Untimely corrective action always invites the reader to ask why the employer didn’t address the situation sooner.
• Request the Employee to Review and Sign - Even if an employee refuses to do so, you establish some level of credibility and good faith by asking. In some states (including Connecticut), the law requires that an employee have the opportunity to submit a response for the file.
• Don’t Backdate Documents - Backdating a document hurts an employer’s credibility, and can have devastating consequences. If a document was not timely dated, the better course of action is find out why and be prepared to explain the reason for the delay.

In sum, employers can decrease their legal risk by creating proper documentation for employee discipline. Generally, employers are viewed in a more favorable light if they have documentation demonstrating that the employee was previously warned and/or counseled, and that the employee was put on notice about performance issues.  Without such supporting documentation, employers significantly increase their risk of not being believed by the finder of fact.