The Importance of Documenting Employment Actions

It is likely that your employment attorney has told you to “document, document, document!”  The most effective way to defend against claims of discrimination, retaliation, or statutory violations is to show that your company has consistently followed its policies or work rules in disciplining employees. Record keeping is key to establishing that your company has fairly administered discipline and not singled out an employee based upon some prohibited characteristic or the exercise of a statutory right.  In short, it is essential to create a paper trail.

Developing forms to guide the discipline/correction process ensures that supervisors won’t procrastinate when it comes to correcting employee behavior or performance. For example, a checklist can be developed to guide supervisors in investigating incidents/performance problems and can aid them in determining whether discipline is appropriate and what form it should take.  A checklist facilitates consistency in employment practices and fairness in dealing with all employees. The checklist should direct the supervisor or management representative to interview all witnesses to the behavior or performance, obtain written summaries of those interviews, detail what happened in factual terms—not opinions, confirm that the rule was published and disseminated to all employees, review how the rule has been enforced in the past, determine how the employee’s behavior or performance needs to be changed, review the employee’s past disciplinary or performance record, determine how similar violations by other employees have been dealt with, tentatively determine the appropriate and justifiable discipline, and any follow-up action that might be necessary.

Regardless of whether the discipline contemplated is a counseling or discharge, or something in between, there are steps to follow after you have thoroughly investigated the matter and have determined to assess corrective action. You should arrange to meet with the employee privately.  Do not discipline an employee in front of other workers. Describe the specific work-related problem in terms of actual performance/behavior and desired performance/behavior. Give the employee a chance to respond and explain his conduct or performance. Take notes of the discussion or have another management representative do so, being certain to include the employee’s story in those notes. Advise the employee that you expect his performance or behavior to change, giving specific examples or suggestions.  Have the employee confirm that he understands the problem, as well as what changes are expected. Tell the employee that you will write a memo summarizing the session and then do so immediately. If written discipline is issued, be sure to give the employee a copy of it and an opportunity to sign any documentation for the personnel file. Clearly state what the consequences will be if the employee’s conduct or performance does not change. Monitor the employee’s behavior and performance to make sure that the problem has been corrected.

A good record will contain, at a minimum, the following information:

(1)        The employee’s name

(2)        The date the employee representative met with the employee

(3)        A description of the specific offense or rule violation

(4)        References to previous conversations or discipline regarding the same or other employment problems

(5)        A specific description of expected performance or behavior

(6)        Any explanation given by the employee for his conduct or performance

(7)        The company’s expectation that the employee will perform properly in the future

(8)        The consequences if he does not

(9)        The employee’s signature or a notation that the employee was provided with a copy of the employment record

Forms can also be developed for the actual issuance of corrective action, such as employee counseling, verbal warnings, written warnings, suspensions and discharge notices.

Use of a consistent format that demonstrates even-handed application of your policies, rules and procedures can be strong evidence that employment action was not taken for some unlawful purpose.  If an employee does not correct his actions despite the company’s best efforts, the company will have created a compelling written case in support of the legitimacy of its decision making.

Karen Bush Schneider

 

 

 

 

 

 

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