I’ve seen it dozens of times. An employer comes to me with an EEOC Charge of Discrimination filed by an employee who has been released from service for a persistent performance or workplace behavior issue. The employer explains that they tried to work with the employee for a period of years, but no amount of coaching or counseling could bring that employee onto the team, so they had to sever the relationship, but now the employee claims he was terminated for some discriminatory motive. When I ask to see the documentation of the coaching and counseling, of any performance improvement plan or of any written warning, there is nothing—or worse, a handful of “acceptable” performance reviews that fail to address the reportedly long-standing issue that was the ultimate reason given for termination. This failure could be costly on a number of levels.
To be sure, an employer does not need to document every comment or conversation. Employers should be free to coach and correct employees on an ongoing basis without the necessity or constraint of creating a written notice. Indeed, those “small increment” corrections are the ones that are most likely to be heeded by employees and to quickly take the employee back to acceptable performance or behavior. However, before a problem becomes profound or the employer-employee relationship damaged by a conflict or deficiency that grinds on or becomes worse over time, it is appropriate to document. Documentation will depend upon the specific situation, but it is critical to be consistent—handle all documentation in the same way to make sure that no inference of discrimination is being communicated to your work force. The best documentation is contemporaneous, specific, relates the employee behavior to company policies, communicates the company expectations, and (if necessary) the consequences of employee failure to comply or improve.
Contemporaneous means now—NOW NOW NOW. Even a short handwritten memo on the day of a disciplinary meeting and warning is better than nothing—and is far better than something written weeks or even months later. Your documentation should be specific about the issue or behavior being addressed, and if applicable, is should relate to any particular company policy that has been violated. Focus on the BEHAVIOR (“you need to be at work on time every day”) and not on the PERSON (“you are a lazy faker”). List any prior verbal or written warnings on the same issue that the employee has been given. Set out what the employee is expected to do/not do/change (“your tardies will be reduced to fewer than three tardies in a rolling 6-week period”). Be specific about what change is expected from the employee, the time frame for the expected changes or improvement, and the consequences of the employee’s failure to do so.
Follow up is also critical. If you issue a written warning to an employee requiring something to happen and you do not get the required result, it is time to follow up. As an example, if your company policies require your employees to submit a written expense report with receipts by the last day of each month, and you have issued a written warning to an employee who has consistently failed to comply with this policy, the next time that the employee fails to timely submit her report there should be a follow up meeting as well as follow up documentation. It is one thing to have an employee who limps along without having a performance deficiency specifically pointed out to him—it is another thing entirely for an employee to willfully fail to conform his behavior to company expectations after having been warned in writing and advised of potential consequences.
Follow up can also be part of an annual performance review. Compliance (or lack of compliance) with a written warning should be noted. The documentation you have created helps serve as a reminder that not everything with the employee was acceptable and can also help you determine whether the employee has responded to the warning appropriately.
You may be faced with a situation where an employee has multiple performance and behavioral issues to address—in this instance individual written warnings may not have been given or may have been ineffective, or an annual performance review identifies multiple areas of deficiency where improvement is required. In this case, a written Performance Improvement Plan (“PIP”) may meet your needs. The concept of giving an employee notice of their deficiencies and an opportunity to improve is one that is frequently seen in unemployment compensation hearings but is increasingly seen in investigation of charges of discrimination as well. It follows the same pattern as a written warning but will encompass a number of issues and desired results as well as a timeframe for completion.
Do you need help getting started with documentation in your workplace? Let us help you.