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Don’t exaggerate or soft-pedal when documenting employee problems.
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
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
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.
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
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!
Still, more often than not, documentation will be helpful. Generally speaking, it should include:
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
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
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
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.
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