Documenting Employee Discipline: Policies, Procedures and Best Practices

Transcription

1 Documenting Employee Discipline: Policies, Procedures and Best Practices FEATURED FACULTY: Ebone Hamilton Lewis, Shareholder, Littler Mendelson (973) Ms. Lewis devotes the majority of her practice to advising and representing management in employment litigation matters, including wrongful termination, discrimination, harassment and wage and hour claims. Ms. Lewis regularly counsels employers regarding a wide range of employment and labor law issues, including employee hiring practices, the development and implementation of employment policies and handbooks, wage and hour laws, employee termination and family and medical leave issues. In July 2007, Ms. Lewis commenced a three-month secondment in the Employment Law Department of Realogy Corporation, a global provider of real estate and relocation services. While on secondment with Realogy, Ms. Lewis counseled and advised various business units on all types of employment law issues, including reductions in force, leaves of absence and wage and hour issues, conducted a training session on harassment and discrimination topics, supervised outside counsel on employment litigation matters, and investigated and responded to internal complaints of discrimination and harassment, as well as charges filed with local, state and federal administrative agencies.

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3 Bulletproof Documentation Creating Clear, Concise & Legally Air-Tight Write-Ups Your Speaker Eboneé Hamilton Lewis, Esq. Shareholder, Littler Mendelson, P.C. 1

4 The Fish Bowl Effect Operate as if third parties may later scrutinize your every move because they will Every word you write or type may, one day, be Exhibit A If it s not written down, it didn t happen! The Ouch Factor These genuine s caused significant issues in litigation 2

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6 Why is documentation important? It prevents later denial Aids your memory Minimizes misunderstandings Provides emphasis Reveals patterns Supports future action taken toward that employee Gives your successor a foundation 4

7 Getting It Right Key Questions Before You Write What is the purpose? Is this an urgent situation? Who is involved? Who will see this document? What you need to document EVERYTHING! Formal Discipline Informal Counseling Problems Meetings Incidents Good things? 5

8 When should you document? Immediately after an incident occurs As often as the problem requires it As part of a regular review process Calendars will help you re-create a timeline Who is your audience? The employee about whom the document pertains? Managers/supervisors HR THE JUDGE AND JURY! 6

9 Types of Documentation Types of Documentation (cont d) Formal Corrective Action Notice Memo Summarizing Verbal Warnings & Directives Handwritten Notes Reports of Investigations Performance Appraisals Chronology of Events Notation in calendar or department log books Meeting agendas/minutes Attendance records Telephone records Photographs, h videos or other evidence Samples of work errors 7

10 Getting It Right What should you include? When should the employee get a copy? Date, location & time of incident(s) Date of memorandum Detailed description of employee s conduct List of specific examples (current and past) Names of people involved/witnesses Which rule or policy was violated, if any Consequences/discipli ne and what employee must due to correct behavior What will happen if the behavior continues Objective recording of your observations 8

11 The Most Common Problems What not to include! Too many cooks Snide and sarcastic comments Being too nice Retaining drafts Casual dialogue Mixing i negative and positive comments Attempting to offer explanations for the employee s conduct Bad: Jane said he is going to request a leave for his back pain Personal opinions Legal conclusions Hearsay, gossip, rumors Information about a medical condition EEO status (protected categories) References to prior irrelevant history Careful of retaliation claims 9

12 Examples of Good and Bad Documentation BAD Not a team player GOOD Judy was told to prepare an estimate of costs by August 10. She didn t finish it on time. This prevented others who needed the information from finishing their parts of the budget. Examples of Good and Bad Documentation BAD does not fit our image GOOD As a receptionist, Sue is in a public contact position. On four occasions (list dates), she has been orally counseled not to work on her nails at the front desk, not to chew gum while working, and not to color her hair blue. 10

13 Dropping the Ball... Lack of proper documentation From a jury s perspective, if it is not in writing, it didn t happen. Contemporaneous = increased reliability Some jurors may also be distrustful of documentation that is over the top. Failure to follow-up (if you say you are going to do something, do it!) Use Evidence of Specific Problem Written documents such as , reports, memos, notes, past evaluations and letters Meeting agendas and voice mail Photos and videos Calendars 11

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15 Performance Appraisals The Benefits: Opportunity to honestly review performance standards and expectations Written rationale for compensation adjustments Analysis of employee s strengths/weaknesses A vehicle to increase motivation and renew commitments Useful in resolving future issues 13

16 Performance Appraisals The Process: Upon hire set goals and communicate performance expectations Provide feedback and coaching throughout the year Recap feedback given throughout the year during performance review Reassess goals and expectations, point out issues & problems, renew commitments and plan for future development Preparing the Written Performance Evaluation Gather and review documentation from entire review period Review prior evaluations Review job description 14

17 Preparing the Written Performance Evaluation Focus on factual information and actual job performance, not personality Give specific examples Be honest, concise and logical Avoid vague, technical words or jargon Be mindful of FMLA/ADA when addressing attendance issues Review employee as an individual, but in context and consistently with entire group No-No s for Performance Evaluations Unsupported judgments and undocumented generalizations Comments that pertain to protected classifications or activities Changing a review form after it s been discussed with or signed by employee 15

18 Documenting Investigations Documenting Investigations Address all issues raised Make a record of your reasoning and steps taken Avoid unnecessary controversial comments State facts, not conclusions of law Set forth consequences/remedies I said/you said how to document the employee s words Should you get a written statement from the employee or should HR/manager write it up? If so, should employee sign? When should outside counsel be hired to document investigations 16

19 Solutions Pre-Claim Documenting Disability-Related Issues List facts, not opinions Delete drafts & limit copies If reasonable chance of a legal claim: Include counsel Use privilege Confidentiality of medical conditions Separate file Don t document disabilities, document requests for accommodation 17

20 A Documentation Culture within your Organization HR is your friend Consult early Use their expertise Managers and supervisors must understand this is a job requirement Ask Your Managers... Did you ever discipline an employee or give a bad performance appraisal Was it easier when you documented specifics to support your action? Did you ever fire an employee? Was it easier when the employee had a final warning in his/her file Did you ever have a poor performer improve? Would it have happened without documentation? Did you ever inherit a job from a previous manager? How did they leave the relevant files? 18

21 Documentation in an Electronic Era Common Evidence in Employment Cases Documentation in an Electronic Era Personnel Files Investigation Records Payroll Databases HR Databases Computers/Home Computers PDAs SIM cards Text and Instant Messages Calendars Litigation Landmines Informality Joking No one will ever see this 19

22 Questions? Eboneé Hamilton Lewis, Esq. Littler Mendelson, P.C. One Newark Center, 8 th Floor Newark, NJ enlewis@littler.com THANK YOU 20

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