Dealing Out Discipline

Avoiding Legal Exposure
by Kimberly Sarff
Husch Blackwell LLP

Managers are best served by training supervisors on proper disciplinary documentation.

Both discipline and termination of employees can result in legal exposure for an employer. But this exposure can be significantly reduced if management and supervisors are trained to follow certain procedures for conducting employee discipline and terminations.

Federal and state laws prohibit discrimination based on an individual’s protected characteristics—race, color, religion, sex, national origin, ancestry, age, order of protection status, marital status, physical or mental disability, military status, sexual orientation or unfavorable discharge from military service in connection with employment. In addition, it is illegal for employers to retaliate against an individual because that individual filed for workers’ compensation, complained about sexual or discriminatory harassment, or otherwise engaged in “whistleblowing” activity—protected categories.

The most difficult employment discrimination/retaliation cases to defend are those in which a former employee who has protected characteristics or is in a protected category is terminated for a legitimate business reason (such as performance or attendance), but managers and supervisors have failed to document problems with the former employee leading up to the termination.

A Case to Settle
The scenario often goes like this: A client calls saying he or she just received a charge/complaint of discrimination and/or retaliation filed by a former employee who has a protected characteristic or is in a protected category. The client says that the employee was terminated because of poor performance or some other legitimate business reason. The client sends the former employee’s personnel file to legal counsel, but the only performance-related documentation in the file are annual performance evaluations, all of which gave the employee average to high marks and wage increases each year.

When inquiring with the client about the terminated employee’s performance issues, it is confirmed that, despite the lack of documentation, the employee did not really perform well and the employee was warned on several occasions about poor performance. The client may be able to recount the instance that gave rise to the termination of the employee, but is unable to recall the specific details of past instances of disciplinary action. Worse, sometimes the supervisor who disciplined the employee left the company on bad terms and is not likely to cooperate. Consequently, the evidence consists of a former employee who received satisfactory reviews and wage increases each year and no one at the company who can give specific examples of past disciplinary issues, other than the most recent deficiency that prompted the termination. Such telephone conversations usually end by advising the client that this may be a case to consider settling.

The Importance of Documentation
In order to avoid this problem, it is imperative that management educate and train their supervisors to discipline employees when appropriate and to document the disciplinary action by written records. Employers should document all instances of performance not meeting expectations, all instances of policy violations, any conversations between a supervisor and an employee regarding work issues or problems, and any discipline taken in response. Disciplinary action may take many different forms, but should always be documented.

Documentation is important for several reasons. First, it enhances the employer’s credibility that the employee was in fact disciplined, which is especially helpful in situations where a former employee denies that he/she was disciplined. Second, it helps recall events. Since litigation or a trial may not take place for several years after the employee’s termination, being able to “refresh” a supervisor’s memory about the former employee’s misconduct by way of detailed documentation, completed and signed by the supervisor, is very helpful. Third, documentation ensures an employee was given the proper level of discipline, by tracking whether an employee was given prior notice of a policy violation. Advance notice shows that the employer is fair, just as it shows that the employee failed to correct the behavior or performance which led to more severe discipline. Importantly, disciplinary documentation also promotes a culture of consistency whereby all employees who engage in the same or similar misconduct are treated the same, which ultimately reduces the potential for discriminatory treatment of employees.

Best Practices
Disciplinary documentation should be drafted by supervisors as soon as the discipline occurs and be incorporated into annual performance evaluations. Effective disciplinary documentation should include, at a minimum, the following:

  1. Date the document is completed;
  2. Date of incident;
  3. Name of employee;
  4. Name of author of the document;
  5. Specific descriptions of the deficiency or incident;
  6. Reference to rule violated (specific references to policies in the company handbook are helpful);
  7. Action to be undertaken by the employee to correct the deficiency; and
  8. Statement of the consequences for future violations (i.e. “Any future instances of misconduct will result in disciplinary action, up to and including termination of employment.”).

The description of the deficiency should be in narrative form and as detailed and specific as possible. For example, if an employee used profanity or made an inappropriate comment, rather than noting that the employee used inappropriate language, the author of the disciplinary document should place the inappropriate language in “quotes.” In addition, if an employee has been previously warned about his/her conduct, this also should be noted. The employee should be required to sign and date the disciplinary document, acknowledging he/she was spoken to about the incident. If the employee refuses to sign, a notation that the employee was spoken to on X date, but refused to sign, should be written on the document. Finally, if necessary, signed statements from witnesses present at the counseling meeting should also be obtained if appropriate.

A good practice for employers is to require their supervisors to complete boilerplate disciplinary forms, which include each of the foregoing areas so that important information is not inadvertently omitted. In addition, to enhance consistency, employers should train management how to investigate personnel issues, including when to discipline an employee and how to properly complete the disciplinary forms. Of course, some companies choose to have a representative of the Human Resources department conduct those investigations, or do so in conjunction with the supervisor/manager.

Employers and management are best served by training supervisors on proper disciplinary documentation. Such documentation will result in reduced legal exposure and provides sound evidence to utilize in employee-related lawsuits. iBi

Kimberly A. Sarff is an attorney in Husch Blackwell’s Peoria office, representing management clients in all aspects of labor and employment law. She can be reached at (309) 497-3245.

 


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