The Top Myths in Employee Discipline Situations
There are many myths related to how employers have to handle employee discipline situations. Regardless of the industry there are common misconceptions about what is required in different employee discipline situations. The misconceptions span employers of different size, background and sophistication and impact every industry. These myths also range from the question of what constitutes employee discipline all the way through how to properly document performance issue. We’ll dive into the top myths that can increase employer liability if not handled properly.
Myth # 1
If it was not a formal write-up and placed into the employers file, then the action does not constitute disciplinary action
There is no legal definition of what constitutes an employee write-up. There is also no legal definition of what is required to be in the employee’s personal file. This means that an employer’s recollections about verbal warnings, written emails and letters can all be produced as evidence to justify an employer’s position for terminating an employee for performance issues.
Key Takeaway – If the employee challenges the termination, support for the termination can come in many forms. It does not have to be a formal write-up stored in the employee’s personal file.
Now this does not mean that an employer should do away with formal employee reviews or stop providing formal write-ups related to performance issues. Diligent documentation is a very good practice to always maintain. Keep in mind that verbal warnings will be very hard to prove at a later date. So why not take a few minutes after the verbal warning to create an email and send it to the employee to summarize the discussion? This is a quick and practical way to memorialize the verbal warning in case any litigation should arise from the termination.
Myth # 2
Employees have to sign disciplinary documents
A very common myth is that employees must sign a write-up in order for the document to be valid. It is good to have a system in place to show that an employee was presented with the write-up and was duly informed. However, a signature is not required by law. Many times an employee will not sign the document because they do not agree with the write-up.
A great work-around for this situation is to add in a signature line on the write-up form that states the employee has received the write-up. The signature line can state the employee does not agree with the findings but has received the document. Another path to working through the signature refusal issue is to email the employee the written warning. This creates a great record of exactly when the document was prepared and sent to the employee.
Myth # 3
Employers have to follow a path of progressive discipline and cannot fire employees for their first offense
Choosing a progressive discipline path is really a business decision that each employer must decide for themselves. A progressive discipline path is usually that of a verbal warning, with progression to a second or third written warning prior to termination.
When using a progressive discipline path, employers need to make sure they preserve the employee’s at-will status. They should reserve the right not to follow the progressive disciplinary system at their sole discretion. The employer can fire an employee for a first infraction if the at-will status has been preserved.
Myth # 4
Disciplinary documents should be as broad as possible
The documentation should cover the overall issues at hand and the need for improvement. The employer should avoid statements that do not provide specific examples. Instead of telling an employee they need to make less mistakes with client accounts, the employer should provide a specific example of the mistakes that have occurred. Employers should provide documented counseling on how to fix those mistakes and what is expected from the employee moving forward.
The employer should document the time, date and facts of the unacceptable work performance. The more facts provided in the employee write-up really set the expectations for the future.
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