One of the more challenging tasks for employers is to consistently and effectively document employee performance either through periodic performance reviews or when dealing with disciplinary issues.
One way employers can help themselves, when dealing with employees, is to regularly document employee performance and/or discipline issues for several reasons.
- Documentation makes it easier for multiple supervisors or successive supervisors to track behavior and performance. Many employees are supervised by more than one person, or change supervisors during the course of their employment. Accurate documentation makes it easier for multiple supervisors to correct performance deficiencies, to discipline consistently, and to apply progressive discipline where appropriate.
- Documentation helps employees know where they stand, and may improve their performance. People have a tendency to hear only what they want to hear, especially when receiving bad news. Written documentation can increase the likelihood that an employee will understand and remember the supervisor’s expectations and change his/her conduct.
- Consistent documentation can be used to counter discrimination charges. If an employee claims that he/she has been disciplined in a discriminatory manner, consistent documentation of discipline can help establish that the employee was treated no differently than other similarly situated employees.
- Documentation of difficult discussions and discipline can help establish that future, progressive discipline is not retaliatory. If an employee is not immediately disciplined for inappropriate conduct, and an employer, through bad timing, imposes discipline after the employee has engaged in some kind of protected activity (such as making an L&I, harassment or discrimination claim, being on jury duty, taking medical leave, etc.), then the discipline may appear to be retaliatory. An employer can be liable for retaliating even if they did not engage in any other wrongdoing.
- Disciplinary records can help the employer prove its position in legal proceedings, if necessary. Supervisors leave, memories fade. Arbitrators, judges, and juries expect employers to document employee performance and discipline issues.
- Progressive discipline is very difficult to impose without written documentation of past disciplinary actions. Generally, disciplinary action is more likely to be upheld if it matches the severity of the incident and reflects a progressive approach. If past conduct and disciplinary actions have not been recorded, it is very difficult to establish the severity of repeated conduct or that a higher level of discipline is appropriate.
Generally, employee documentation should:
- Be job related. No one is perfect, and documenting and/or disciplining employees for insignificant or non-job-related things can backfire because it may be considered an excuse for discriminating based on age, race, ethnicity, national origin, religion, sex, sexual orientation, disability, or some other protected status.
- Be as broad as possible regarding the basis for discipline or the basis for unsatisfactory performance. If there are several policies that have been violated, or multiple performance deficiencies, list all of them. Broad descriptions allow for similar conduct to be the basis for progressive discipline if the employee engages in similar, but not identical, conduct in the future. Listing all applicable grounds also provides a broader basis for upholding your actions in a legal proceeding.
- Avoid inflation. If you use a scale to grade performance, do not indulge in grade inflation, either before or after disciplining an employee. A score of “needs improvement” or “satisfactory” may not be sufficient to support a discharge if the performance should have been graded as “unsatisfactory.” The fact that every other employee was rated “excellent” and this particular employee received a “good” rating does not establish that the employee’s performance was unsatisfactory.
- Be evenhanded. Similar problems with other employees should be treated similarly to avoid claims of discrimination or retaliation.
- Select a level of discipline that is appropriate for the conduct or performance. Check your policies for guidance, and find out what discipline has been imposed on others for similar conduct in the past. This is especially important if you are decentralized and do not know what discipline has been imposed by other managers/supervisors.
- Describe the specific conduct or performance deficiency. After listing the violation(s) or deficiency(ies), describe what the employee did wrong with enough detail to allow for correction of the problem (if appropriate) or to provide the evidence necessary to support discharging the employee.
- Be clear about consequences. Let the employee know what will happen if change is not forthcoming, or if inappropriate conduct is repeated.
- Remind the employee that he/she can still be disciplined or discharged for other inappropriate conduct. Sometimes, written documentation implies that, if the employee addresses the specific problem listed, then the employee will remain employed forever. Make sure that, after listing required corrective action, a statement is included to the effect that nothing in this warning (or memo or evaluation or whatever the document is) precludes corrective action for any other matter. This is particularly important for at-will employees.
Additional documentation may be needed for giving a performance evaluation or imposing discipline, depending on the circumstances. For example, be sure to document improvement accurately. If the employee has improved, but the performance or conduct is still unsatisfactory, make sure that your evaluation includes both of these facts (instead of just stating that the employee has improved) and explain what else is needed to bring the conduct up to acceptable levels.
Similarly, if the employee does not improve, continue to document the disciplinary or performance issues so that there will be a complete record if the employee is subsequently terminated or subject to additional discipline.
Ideally, disciplinary memos and performance correction notices for at-will employees should also reiterate their at-will status.
Clear, concise and consistent documentation is an essential tool when communicating performance expectations or imposing discipline. Employee turnover is time consuming and often expensive. Using effective communication tools will go a long way to reducing turnover and building a motivated, dedicated and loyal workforce.
These materials are not intended, and should not be used, as legal advice. Specific legal problems have specific factual situations and require specific solutions, none of which are provided by these materials. Anyone reading or otherwise using these materials should not rely on them as a substitute for legal advice.
Gil Sparks is Of-Counsel for Ogden Murphy Wallace, and has over 24 years representing employers on employment and labor law matters. Additionally, he has over 16 years senior human resources experience and is certified as a Senior Professional in Human Resources. He can be contacted at (509) 662-1954; or by email at firstname.lastname@example.org.