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Protect your Company by Properly Documenting Employee Discipline

Written by: Hunt Henion

Article Overview: The days of firing employees at will are long gone. Today’s HR mangers need to comply with a strict disciplinary routine to enforce compliance with their own policies. If enforcing compliance in not possible occasionally, your documented effort to improve behavior and performance is your only defense against wrongful discharge suits.

Protect your Company by Properly Documenting Employee Discipline

Compliance with your important policies is, of course, the primary goal of any disciplinary system. However, when employees cannot be motivated to cooperate, despite your best efforts, employers need a system in place that documents all of the corrective action measures they took. Without an adequate documentation system, employees become confused about what's really expected of them and your company is vulnerable to the results of that confusion: low morale, decreased production, and wrongful termination suits.

You can avoid this confusion by making employees aware of what exactly is expected of them at their original orientation. This should be reinforced during regular periodic reviews. However, between reviews, if employee behavior or performance is not adequate, it needs to be discussed immediately with the employee, and those discussions needs to be documented and organized into the employee's file in order to prove "due process" if the matter ever ends up in court.

Proper compliance with due process laws and precedents gets tricky when it comes to documenting a series of violations. An employee may do many things wrong. Still, the rule of thumb is that an employer needs to document a particular violation or inadequacy, and his or her attempts to improve that situation, at least three times before termination is justified. That's not three violations of some policy. What's required is generally three violations of the same policy!

Employers with a properly drafted policy and enforcement system may occasionally "bundle" offenses. Bundling allows offenses that are relatively unrelated to be lumped together for purposes of documenting poor performance. The accumulation factor often plays an important role in justifying terminations because it documents that workers are not rehabilitating themselves or taking prior warnings seriously. However, bundling violations is really a fallback position when employers don't have adequate documentation on a particular type of violation. Documenting and grouping similar violations together is therefore an important goal.

Here are some other important goals in documenting your good-faith efforts to improve behavior/performance:

1. Clearly state in writing the nature of the problem and, if possible, how the employee's performance or conduct damaged the company.

2. Provide a clear and un-equivocal warning that failure to improve will result in discipline, up to and including termination.

3. Provide successive written warnings, proving that the employee's violations or poor performance continued despite repeated efforts to correct the problem.

4. Show that discipline was doled out in a fair and consistent manner, so that any worker would reasonably expect to be terminated under similar circumstances.

The typical progressive discipline formula begins with a verbal warning and progresses to two written warnings before the final written warning is given. The number of warnings, of course depends on the severity of the violation. If the violation ceases, then the process ceases. However, if it continues, the progressive disciplinary process continues all the way to termination.

Prior to termination of the employee, the HR manager will want to double check the records to make sure that action is defensible. Ask yourself if your records would prove to a jury, who is more than likely all rank and file workers, that you did everything possible. If that answer isn't "Yes," it might be wise to put off termination until you gather more written justification.

There are basically three ways to document your disciplinary procedures. You could set up a computer data base that will produce reports by employee per type of infraction. It's important that the employee gets some sort of written notice of deficiency on all but the first warning. (Writing up the first verbal warning is optional.) It's also important that you note in the report his or her response. Was the employee belligerent? Did he or she agree with the criticism? These are all important notes regardless of the form of documentation.

The second possible form of documentation would be a simple two part form that details the infraction or deficiency. The employee would get a copy, and one copy would go in the employee's file. If this is a repeat offence, you need to attach this report to all other records of a similar offence. When you have two similar offenses, you need to warn the employee that his/her job may be in jeopardy if the deficient behavior isn't corrected, and document their response to that as well. This gives your documentation "teeth," proving that the employee was informed of the violation and the consequences of not correcting the behavior.

The last documentation option is a multi-part disciplinary form where each sheet is longer than the preceeding one. You would use one of these for each type of policy violation. This way, the employee gets the top copy and the rest of the form goes in the employee's file for future infractions. If you use one form for each type of violation, you won't have to manually look through the file for previous offences of a similar nature. Also, each time you pull the partially used form out of the employee's file, they know what's coming (particularly if sheet 3 or 4 is a pink slip), and this visual aid will help them take the disciplinary action very seriously.

Whatever documentation option your set up, it's important to follow through on each step consistently and carefully, explaining the issue and recording the employee's response. If the employer's corrective action program is inadequate, or if any of the required steps in documenting repeated violations of a particular policy are not thoroughly adhered to, your position will more than likely not be defensible, which can be very expensive and a PR nightmare.

Wrongful termination suits are a nuisance at best. They can cost your company back pay, and damages, and the respect of your employees. Having a proper system of routine disciplinary steps in place and carrying them out consistently improves employee/employer communications. That improves morale. In cases of safety violations, careful and consistent enforcement of policy may even save lives.

Consistency is key to the process. Workers have the right to predictable employer responses when a rule is violated. Failure to follow through on threatened consequences damages the credibility of the disciplinary program among employees, and sets an unintended precedent.

Discipline also needs to be appropriate for the offense. Occasional poor performance is certainly actionable, but usually not cause for termination. An employee's performance and prior disciplinary record certainly must be taken into account. You need to consider it, because a jury certainly will!

The employee also needs a fair opportunity to correct behavior or performance. Administering discipline without allowing an employee to respond is just asking for trouble. Taking corrective and progressive disciplinary action is really an art. However, developing that art is anincreasingly necessary part of every human resource manager's job description.

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Article Tags: accumulation factor, adequate documentation, best efforts, confusion, corrective action measures, disciplinary system, documentation system, due process, employee behavior, fallback position, inadequacy, least three times, low morale, many things, poor performance, precedents, proper compliance, rule of thumb, terminations, wrongful termination



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