Posted in Best Practices For California Employers, Employee Handbooks, Resources, Terminations, Wrongful Termination
Working with employers are various
sizes, backgrounds, sophistication, and industries, I’ve seen a lot of
confusion and simple misunderstandings about what constitutes employee
discipline and how to properly document employee performance issues or
discipline. This Friday’s Five addresses five common misunderstandings
I’ve seen recently about employee discipline and documentation:
1. If it was not a
formal write-up put in the employee’s file, then the action does not constitute
disciplinary action.
There is no legal definition of what
constitutes a write-up, nor is there a definition of what is required to be in
an employee’s personnel file.
Therefore, recollections about verbal
warnings, e-mails, letters, even notes on napkins can be evidence to support an
employer’s position that an employee was terminated because of performance
issues. The key item employers need to remember is if the employee
challenges the reason for the termination that there is support for the
termination decision, either through testimony and/or documentation. The
documentation can come in any form and does not have to be a formal write-up
that is maintained in the employee’s personnel file. However, this is not
to say that employers can do away with formal employee reviews and write-ups,
these are very good practices to maintain.
2. Verbal warnings do
not have to be documented.
If there is no record of verbal warnings
it is very difficult to prove at a later date that the employee had been
counseled about the issue. Managers should always document a verbal
warning in some manner, such as in a manager’s log or even e-mailing themselves
the specifics about the verbal warning. By preparing an e-mail and
sending it to themselves, it creates a great time-stamped record that is
excellent evidence should there ever be any litigation concerning a
termination.
3. Employees have to
sign disciplinary documents.
Some employers do not think a write-up
for an employee is valid unless the employee signs the write-up, but this is
not true. While it is a good policy to have some system that proves the
employee was presented with the write-up, it is not required that the employee
sign the document. Many times the employee will refuse to sign such
documents because they do not agree with them. To alleviate this, some
employers provide a line on the document that states the employee does not
necessarily agree with the write-up, but is signing the document only to
acknowledge receipt. Another method to avoid the argument that the
employee never received the written warning is to email the employee.
This creates a great record of when the warning was prepared and sent to the employee.
4. Employers have to
follow a progressive disciplinary policy and cannot fire employees on their
first offense.
While employers may choose to implement
a progressive discipline policy that starts discipline with a verbal warning
and progresses to a second or third written warning prior to termination.
However, if using a progressive disciplinary system, employers should be
careful to preserve the employee’s at-will status and reserve the right to not
follow the progressive disciplinary system at is sole discretion. As long
as the employee is at-will, they can be terminated at any time, even after
their first small infraction of a company policy. For more information
about at-will employment, click here for my previous article.
5. Disciplinary
documentation should be as broad as possible.
While write-up and counseling should
address the overall issue that the employee needs to improve, employers need to
avoid general statements without providing specific examples. For
example, instead of writing an employee up for having a poor attitude, the
employer should provide a specific performance issue. The employer should
document the time, date and facts of the incident. Write ups should also
list the conduct that is expected of the employee in the future.
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