LEGAL TRENDS Blunders in Documenting Discipline

 

Sometimes I hear people say “document, document, document” as if that were the answer to all problems. Were that true, wouldn’t we all just document and spend money on our mission and employees instead of litigation?

Of course documentation is important. But bad documentation is worse than no documentation at all. The content of your paper trail—including word choice—is key.

Plus, timing is critical. There are times when documentation may actually increase your legal risk.

Why Documentation Matters

We tell our employees how much we love them in our handbooks. Then we remind them that they are at-will—that is, that we can fire them at any time, with or without cause or prior notice, as long as the reason is not discriminatory.

Well, if an employee is at-will, why do we need documentation? I am sure each of you has had a manager ask that indignantly.

As a human resource matter, the goal of performance management is not to create a record that can withstand attack but to help an employee improve so that he or she has no need to attack. Documentation helps employees to focus on areas for improvement.

As a legal matter, if an employee is let go, documentation helps to show that the reason you are providing is a legitimate one that you have articulated and not a post-termination pretext. Plus, no matter what the legal theory may be for attacking the discharge, juries consider fairness. Fairness always matters, and documentation increases actual and perceived fairness.

Counterproductive Documentation

Another of my favorite expressions is “consistency, consistency, consistency.” Were it that simple, would so many lawyers on both sides of the litigation aisle have summer homes?

The most common equal employment opportunity charge for the last few years has been retaliation. Sadly, sometimes when you provide an employee with notice of deficiencies and an opportunity to improve reflected in disciplinary documentation, he or she plays legal chess and tries to argue that any adverse action is retaliatory. The employer very well may prevail, but not without incurring the time and cost of a fight.

Sometimes, it may make sense to terminate an employee without prior notice. Consider a situation where the employee has been employed for only six months and has not taken any leave, made any complaints or had any medical problems. If the person who hired the employee is the same one who is firing him, the same-actor inference applies (a legal presumption that a supervisor who hires an employee in a protected category will not later discriminate against the employee).

In this situation, the legal risk of termination without prior notice is low. But if you give a warning, the employee may weaken your position by engaging in protected conduct to manufacture a retaliation claim if fired later. Sad but true!

Helpful Documentation

Still, more often than not, documentation will be helpful. Generally speaking, it should include:

• The employer’s expectation.
• How the employee has failed to meet that expectation.
• Prior counseling or discipline.
• The employer’s expectations for the employee going forward.
• The consequences of the employee’s failure to make the requisite improvement.

Common Mistakes

Below are the 10 most common disciplinary documentation mistakes I have observed:

Using labels without providing behavioral examples. Using labels provides little guidance to the employee about where improvement is needed and provides only marginal defensive benefit. Stating that an employee has a bad attitude isn’t saying much.

Drill down to what the employee did or did not do in behavioral terms—for example, “The employee denied responsibility for his failings, blaming others. Further, he often discussed why things would not work as opposed to how to make them work.” (You have one of those, too?)

Using words that sound like “proxies” for bias or retaliation. For example, all too often “lack of commitment” is used to describe someone who gets the job done but not necessarily at the office because that individual has child or elder care responsibilities. That person is more often than not a woman. As long as the work product meets your expectations of quality and timeliness, it should not matter whether the employee completes it between 6 p.m. and 8 p.m. in the office or between 10 p.m. and midnight after the kids are asleep.

Of course, that does not mean the concern about commitment is always without legitimate basis. What if the employee never volunteers, must be persuaded to accept assignments and complains incessantly about how things were better before the bar was raised? Then say that.

Focusing on the employee’s intent (as opposed to results). Focus on results, and stay away from impugning an employee’s intent. Avoid statements like “You didn’t try,” “You don’t care” and “You weren’t applying yourself.” Intent is largely irrelevant; you cannot prove it, and it may be taken as a personal attack. Employees who feel attacked attack back.

Focusing on the perceived cause of a performance problem as opposed to the problem itself. Don’t state or suggest that you believe an employee has a physical or mental condition or that performance deficiencies relate to reasons for a prior leave. “I am concerned that your performance has declined since your second child” may buy college tuition for both children. Similarly, “You seem depressed” may help lift any possible depression when the employee realizes that you have just given him or her a viable perceived disability.

Using absolutes that are not credible. No one is perfect or totally flawed. Your comments should reflect balance, not extremes. Remember, absolutes (always and never) are absolutely assailable and almost never defensible. If the employee can provide one example contrary to the stated absolute, you may be portrayed as a liar trying to target the employee because of his or her protected status, activity or leave.

Hedging so much that the employer seems uncertain of the basis for its own decision. “It would appear” or “It would seem likely” will be heard as “I don’t know.” Recast the sentence: “You don’t seem to understand the new computer software” becomes “You have made three major mistakes with the new computer software that have. …”

Including too much detail. Sometimes supervisors nickel-and-dime the employee with details on everything he or she has ever done wrong. This is overkill and looks like a setup. Provide a general statement, and then make it clear that you are including only some examples of the deficiency so that you can later raise other examples: “There have been a number of interactions with customers that have been less than acceptable. The following are three examples.”

Using technical rather than plain language. With knowledge workers, sometimes the deficiencies are of a technical nature. You need to express the technical deficiency in plain language. Remember, you are writing not just for the employee but also potentially for a court, commission or jury.

Failing to make clear the consequences of lack of improvement. It is very important that employers be specific here. If it is a final warning, say that and make clear that if there is not adequate improvement, the employee will be subject to immediate discharge without further warning. I prefer “will be subject to” rather than “will result in” so that you convey a strong message but have some wiggle room. If it is not a final warning, then the consequences usually are “more severe discipline up to and including immediate discharge.”

Using labels that may create liability. Sometimes employees who engage in offensive behavior are fired for sexual harassment. Then the “victim” sues and tries to use the label as an admission by the employer. Meanwhile, the terminated employee also sues for defamation because the conduct, even if it is as alleged, is not severe or pervasive enough to be unlawful harassment. There is a big difference between “unlawful harassment” and “unacceptable conduct inconsistent with our harassment policy.” Avoid the legal label.

Another example: You are a professional services provider, whether it is a health care system, a law firm or an engineering firm. You state that the employee’s performance is “substandard.”

Why not just concede malpractice? At a minimum, the documentation would support a breach of contract claim in terms of services provided. Again, there is a big difference between “substandard” and “below our high standards.” Use words that focus on your appropriately high expectations.

Jonathan A. Segal is a contributing editor of HR Magazine and a partner at Duane Morris LLP in Philadelphia. Follow him on Twitter @Jonathan_HR_law.