In order to defend a termination decision, employers should live by three words, according to Rebecca Siegel Singer, senior counsel with the Dallas law firm Underwood, Perkins & Ralston, P.C.: “Documentation, documentation, documentation.” But for some that’s easier said than done.
Case in point: In an October 2009 HR Talk posting on the Society for Human Resource Management (SHRM) web site, a member wrote: “On a recent disciplinary write up for an employee who showed up to work over two hours late (the second time in a month) the employee stated that he has been informed not to sign any disciplinary actions issued by the company. Do any of you have a similar problem within your organization?”
SHRM members responding to the post offered plenty of advice, such as calling in a witness to verify the employee’s refusal to sign and even tricking the employee into signing by asking for a signature on the back of the piece of paper instead.
Singer said employees should be asked to sign documentation acknowledging that they have received a warning, that they understand company policy and that they know what is expected of them. If they refuse, however, she said, an employer can simply send a follow-up e-mail confirming that the conversation took place and the nature of what was discussed and noting that the employee refused to sign the documentation.
But one expert suggested that documentation challenges occur because managers try to place the proverbial “cart before the horse.”
“Documentation is so easy, and companies get it so wrong,” saidDick Grote, founder of Grote Consulting and author of Discipline Without Punishment (AMACOM, 2006). “There is an erroneous notion that what you are documenting is the existence of the problem.”
He said the real purpose of documentation is to make a record that a conversation took place. As such, the need for an employee’s signature is much reduced.
“The reason the nasty signing business comes up,” he told SHRM Online, is to prevent supervisors from writing an employee up and dropping the documentation into the employee’s file, sight unseen.
That’s why it’s important to be sure that the documentation follows the discussion, Grote noted.
Terminate or Rehabilitate?
Experts say that progressive discipline, when done right, should change employee behavior to meet employer expectations.
“Progressive discipline works when it is just that—progressive,” said Dawn M. Adams, PHR, president of HResults in Hartland, Wis., and member of SHRM’s Employee Relations Special Expertise Panel. Each step of the progressive discipline process should include very specific information on areas for improvement, appropriate measurements, and a time frame by which to gauge improvement and ramifications for not improving, she explained.
“I like to use the time frame of ‘immediate and continued’ so that the improvement is sustained and the efforts toward improvement begin immediately,” said Adams.
“A true progressive discipline policy is one where the employer begins steadily advising an employee of performance-related deficiencies and attempts to provide the employee with suggestions and advice on how the employee can improve his/her performance,” said Paul Lopez, director of the labor and employment practice of Tripp Scott, a South Florida law firm. Therefore it provides an opportunity to rehabilitate an employee whose performance is falling short of expectations and serves as a warning that further discipline could be forthcoming if warranted, he added.
“Oftentimes, however, instead of doing it this way, a manager will try to document a file with evidence of performance problems after the manager has already decided that termination is the appropriate measure,” Lopez told SHRM Online.
Grote said documentation should indicate that it is being provided to confirm a conversation that took place at a particular place, date and time between named individuals. It should summarize what each party said and indicate the outcome of the discussion, he added, such as making it clear that the employee will be given a paid day of “decision-making leave” if performance or conduct fails to meet stated expectations.
A Documentation Oxymoron
Marie LaMarche, MBA, SPHR,employee/labor relations manager for the Harrison Medical Center in Bremerton, Wash., and a member of SHRM’s Employee Relations Special Expertise Panel, said one aspect of the company’s progressive discipline policy rubs supervisors the wrong way: the documented verbal warning or, as supervisors call it, the “written verbal.” However, in a union environment such as theirs, she said, it is important to have a record of what was discussed and what is expected of the employee. “In instances where the verbal is not documented but mentioned in written documentation, inevitably a misunderstanding of what was discussed will arise,” she told SHRM Online.
“The fact that the warning was given should always be documented,” said Damon Kitchen, a partner with the law firm Constangy, Brooks & Smith's Jacksonville, Fla., office,and should include the date and time of the incident, the date and time the verbal warning was given, the substance of what was said and a brief explanation of the policy violation that caused the warning to be issued. But he noted: “A verbal warning should be issued verbally, as opposed to in a written or electronic format.”
A Team Effort
Managers and HR staff should work together to ensure that discipline is reasonable, according to Debra Love, senior director of client HR at Oasis Oustourcing, a firm that represents more than 3,000 client companies employing between 25 and 2,000 employees each. HR serves as a sounding board, she said, and makes sure that the policy is applied consistently, without regard to protected class.
“Throughout the entire process, HR should be involved and providing guidance,” Adams stated.
“The manager is responsible for ensuring that the employee understands where he/she stands,” Adams said. But that’s only one piece of the process. “To minimize risk, managers must document the performance issues, improvements made, lack of improvement, and other relevant information,” she said.
And that’s one of the many ways in which HR can help.
When working with clients, Grote provides training for those with leadership responsibilities. “It’s the senior line managers that are responsible for making sure the tools are being used,” he said. They know who the “problem children” are in an organization and should be asking those employees’ supervisors where they stand in the discipline process, he added.
But additional training is provided to the HR team, Grote said, so HR can reinforce the learning, answer questions and coach supervisors on how to have good conversations with employees. “HR’s job is to be the wise counselors and advisors that help managers,” he said.
Rebecca R. Hastings, SPHR, is an online editor/manager for SHRM.
Is Progressive Discipline a Thing of the Past? SHRM Online Employee Relations Discipline, Jan. 19, 2010
The Pros and Cons of Electronic Documentation, SHRM Online Employee Relations Discipline, Nov. 24, 2009
Interested in this topic? Learn more at the following SHRM Annual Conference sessions to be held during June 2010 in San Diego:
*Tough Conversations to Have with Your Employees: Verbal Strategies for Addressing Performance, Conduct and Discipline Challenges
*Taming Workplace Beasts: Innovative Conflict Resolution with Tough Adversaries
Learn more about this event