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Careful wording may prevent the worker from declining to sign
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You've done the hard part: documented an employee's poor performance or misconduct, discussed it with the employee and his manager, and written up the proceedings. One last step and you can all move forward; he just needs to sign your report on the disciplinary action. But, wait! He's protesting the discipline and is refusing to sign. Now what?
Employees often refuse to sign disciplinary actions, but they are more likely to sign if the notices are presented and worded in the right way. You want their signature as proof that they received the discipline for their behavior.
You can also ask the worker to write out his rebuttal, which would give him the chance to air his grievances and raise any issues that merit HR's attention.
If the employee still opts not to sign, an HR professional and witness can document receipt with their own signatures. They may later be called on to testify that the discipline had been presented to the worker.
Explain at the very beginning of the disciplinary meeting what is going to happen, recommended Maria Greco Danaher, an attorney with Ogletree Deakins in Pittsburgh.
You, the HR pro, might say something like, "We're going to discuss with you the issues that led to this discipline. At the end of this meeting, we'll show you a form on which we've documented the reasons for this meeting and discipline and will allow you time to review it. We'll also ask that you sign the form, simply to show that you've received it and read it. Do you have any questions before we begin?"
Use Careful Wording
Employees are more likely to sign disciplinary notices that clarify right above the signature line that they may disagree with the warning and, by signing, they are acknowledging only that they recieved and reviewed the documents, said Kristin Gray, a lawyer with FordHarrison in Spartanburg, S.C.
Consider including a section that permits an employee to add his or her own comments, she added. That also would serve as notice that the worker received the warning.
Danaher recommended separating the signature box from the body of the disciplinary report. She said that the signature box should state, "My signature here indicates ONLY that I have had the opportunity to read this report. It does NOT indicate my agreement with the contents" and should have a signature line below it. If there is a comments box, include another signature line below it.
Document Receipt When Employee Doesn't Sign
Despite an employer's best efforts, sometimes an employee will still decline to sign. What does HR do then? You don't want to look like you've written up the employee and placed the documentation into a personnel file, sight unseen.
Be careful about how this refusal is characterized, Danaher cautioned. She prefers the less adversarial sounding phrases "elected not to sign" or "chose not to sign after a request to do so."
The employer may ask the employee to write on the form, "I disagree," and sign and date that, noted Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C. This seldom works though, she added.
If that fails and you, as the HR representative, are alone with the employee, you might call in another manager as a witness, Shea said. With the witness present, have the employee acknowledge that you went over the discipline and that the employee has chosen not to sign. Then you and the witness can sign and date language that would say something like, "Met with employee on [date] and discussed the above. Employee declined to sign" with full name or initials and date. Or the supervisor can do all of this, if you are not at the disciplinary meeting.
[SHRM members-only HR Q&A: Should HR be included in all disciplinary meetings?]
While some might fire an employee for not signing as insubordination, Patricia Wise, an attorney with Spengler Nathanson in Toledo, Ohio, said an employer should not insist that the employee sign a disciplinary notice. Asking for a signature on a disciplinary notice isn't like distributing an employee handbook or providing a restrictive covenant, which must be signed with no exceptions, she said.
If an employer threatens to fire a worker for not signing a disciplinary notice, the company has escalated a situation unnecessarily, agreed Jeffrey Stewart, an attorney with White and Williams in Center Valley, Pa. Moreover, if the worker is fired at that point, he or she is likely to be eligible for unemployment compensation (which can increase unemployment taxes for your business), even if the warning was for misconduct or poor performance. Repeated misconduct typically disqualifies someone from unemployment compensation; poor performance does not, he noted.
However, Donna Bernardi Paul, SHRM-SCP, managing director, Human Capital Management with BDO's Business Services & Outsourcing team in McLean, Va., said, "Putting up with this type of behavior is not the best management practice and may have other unwanted implications on the remaining staff; albeit moving the employee out of the role may not be the most risk-mitigating decision."
Ask for a Written Rebuttal
Rather than insist on a signature, HR professionals should encourage the employee to submit a written rebuttal, Shea said. Attach the rebuttal to the disciplinary form.
She said that there are at least two benefits of getting a written rebuttal:
If the employee declines to sign and does not submit a rebuttal, it will be more difficult for the employer to prove that the employee received the discipline, she noted. "If the employee chooses to deny it, there would be very little the employer could do to counter that."
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