The Rules of Disciplinary Documentation
By: ROBERT C. BOISVERT, JR.
September 2001
It IMPROVES employee performance! It LOWERS the risk of being sued! It helps WIN employee lawsuits! What can do these amazing things and more? Documentation.
Documentation is one of the most effective tools for dealing with personnel issues and discouraging employee lawsuits.
Despite its amazing powers, employers sometimes neglect to document because they think it is too complicated or too time consuming. But documentation can be simple and quick if employers follow the four rules of documentation.
Rule 1: Do It.
The biggest problem for most employers is that they simply do not document. Documentation of disciplinary and performance problems is critical. Documentation can:
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improve employee performance;
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shape employee expectations;
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decrease the chance of a lawsuit; and
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increase the employer's chance of winning a lawsuit.
Documentation can help prevent employee lawsuits by educating employees about performance issues and providing them an opportunity to improve. Employees who have been given written notice of a problem and an opportunity to correct it are less likely to sue. Employees who believe they have been treated fairly by having been warned before termination also are less likely to sue.
If an employee sues, documentation also provides important evidence to support the employer's case. Jury surveys consistently show that (1) juries distrust employers, and (2) juries expect employers to document performance and discipline problems. A survey by Dispute Dynamics Inc. reported that 74 percent of those surveyed believed that employers must provide fair warning before firing an employee, must ensure that the employee understands the policy or rule violated, and must work with the employee to correct the problem or poor performance before terminating the employee. Ninety percent believed that an employer was "negligent" if it did not properly document an employee's performance problems.
Rule 2: Know Your Audience.
The primary audience for documentation is the employee. Documentation should educate the employee as to the nature and seriousness of the performance or disciplinary issues, the employer's expectations, and the likely consequences of continued problems.
Employers who document should also be aware that they are writing for an equally important secondary audience: lawyers, judges, juries, and agencies. What an employer writes for the employee may later be read by the employee's lawyer. Effective documentation may persuade the lawyer not to take the employee's case or to settle more favorably. Employer documentation may also influence an anti-discrimination agency to rule for the employer. Similarly, a judge or jury may be more likely to believe an employer who contemporaneously documented performance or discipline issues.
When documenting, employers should remember that the secondary audience will be unfamiliar with the parties and the employer's business. Therefore, to effectively communicate with this audience, the employer's documentation must:
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Tell the story: explain the problem and its impact.
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Avoid jargon.
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Make it clear that the employee received notice and an opportunity to improve.
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Be given to the employee.
Rule 3: Follow The Rules.
Effective documentation requires employers to abide by rules and laws that govern the workplace. Before taking any disciplinary action, an employer should review its employee handbooks, policies, and contracts to determine whether they restrict the employer's right to discipline or discharge. Company policies and agreements may require employers to follow certain procedures when disciplining an employee or limit an employer's ability to discipline employees.
Employers should also review how they have handled similar problems in the past. Disciplinary action should be consistent with past practice to avoid unwittingly treating a member of a protected class differently, thus creating a discrimination claim.
Employers should beware of employees' legal rights so that they do not discipline employees for legally-protected activities. For example, absenteeism may be protected under the Family and Medical Leave Act or the Americans with Disabilities Act. The employer should consult its attorney if employee legal protections may apply or if performance or discipline issues are likely to result in termination.
Rule 4: Tell The Story.
The most important element of disciplinary documentation is telling the story - factually describing what happened and why it matters.
To tell the story, the employer should first learn the facts. The employer should interview witnesses with firsthand knowledge of what happened. In most cases, gathering the facts also means interviewing the accused employee for his or her side of the story.
Once the facts are clear, the employer should document the disciplinary incident or performance issue. If the employee was disciplined before, the employer may wish to note that in its documentation. The employer should avoid using labels, adjectives, adverbs, and conclusions, all of which increase the risk of a defamation claim.
Documentation should also state the consequences of further disciplinary action. Ordinarily, employers should preserve their flexibility to terminate, by stating something such as: "Further discipline or performance issues will result in further disciplinary action, up to and including termination." As a general rule, employers should avoid binding themselves to progressive discipline or rigid timelines, unless required to do so by contract or policy.
Documentation is key to dealing effectively with employee discipline and performance issues and avoiding unnecessary employee lawsuits. By following the simple rules outlined here, employers can unleash the amazing powers of documentation.