Poor Documentation Dooms Employers’ Defense

Failure to carefully document discipline remains one of the biggest legal problems that employers face, says attorney Jonathan Segal (Segal is a partner with the Wolf Block law firm in Philadelphia). Lawsuits that should never have been brought appear on your desk, and lawsuits that should have been dismissed become hard to fight.

(comments by A Plus Benefits in italics)

Don’t Guarantee Progressive Discipline
Progressive discipline and documentation are not legally required, but they are legally beneficial, Segal says. But don’t guarantee progressive discipline. For example, your policy might say, “Although employment is at will, we may from time to time apply progressive discipline. Ordinarily the process will involve these steps. However, we reserve the right to skip steps.”

Strive for Consistency
Whenever you make an exception to policy, no matter how well intentioned, the exception you make for employee #1 will be the comparator for employee #2, Segal says. In other words, the second employee will say, “You didn’t fire Susie for this offense, so you can’t fire me.”

There is a compelling logic to that position unless you carefully document your exceptions. For example, you might write to the employee (preferably in the body of a written warning), “What you did is ordinarily punishable with discharge, but because of your 20 years of fine service, and your recent excellent work record, we are not terminating your employment. If both factors had not been true, we would not have been able to make this exception.”

If the situation with Susie has been documented and there was a valid reason for not firing her for the same offense as Mary (perhaps Mary has been employed for a short time and has not done to well on her performance reviews) the employer now has a much enhanced defensible position for treating Susie and Mary differently.

Discipline in a Timely Manner
The business benefit of acting in a timely manner is that you draw attention to the problem, and either the employee improves or leaves. Other employees also see that you are acting in accordance with your policies and not playing favorites.

Legally, you also gain by not waiting. Here’s what happens:

You hire a receptionist, Sally. Monday, the first day of work, no call, no show. The manager calls HR and asks, what should I say when I call? (Segal says, “How about no call, just fire her?”) Well, says the manager, “I attended a seminar and we heard about bias, and this is an older woman.” Segal says, “But she was an older woman 2 weeks ago. If you let her go now, you’ll be protected by the ’same actor inference.’ ”

Segal explains that when the person who fires is also the person who hired, and the termination is reasonably close in time to the hiring, there’s an inference that it’s not discrimination.

But in this case, the manager does not terminate Sally. Tuesday she does come in, Wednesday she is late, Thursday she’s on time, and Friday she calls in sick. Ten months later she is fired for attendance problems. But look what’s happened in the intervening period:

1. She has a new manager, so the same player inference is gone.

2. She’s been there longer and has developed a greater emotional sense of entitlement to her job.

3. You have become aware of certain medical problems.

Now what could have been an easy firing has morphed into a tricky one.

It is also important to have a performance evaluation before the new employee moves from the status of “introductory” employee to “regular” employee. Many organizations have a 90 day introductory period.

Southwest Airlines, one of the most successful companies in the U.S. does this very well. They understand that if an employee has not proven to be a great employee the first 90 days of employment things aren’t going to change the next 90 days. If an employee is not “cutting it” then its best to cut the employee.

In the last 14 years at A Plus I have heard hundreds of times, “I should have discharged Bob when we had problems with him the first week of his employment.” And now 2 years later Bob has become a costly problem. Don’t take it personally, sometimes we just hire the wrong person – keeping the wrong person employed is detrimental to everyone.

Watch E-mails
Train managers not to put legal issues in e-mails. Later, such communications may suggest that legal conclusions had been reached. So, the e-mail message is not “Jimmy has been harassing” but “I would like to speak to you.”

Anything you have written in an e-mail can be discovered when a law suit is filed. You may think you are safe because you have deleted the email months ago, don’t be fooled, e-mails never really go away to a place where a good computer tech can’t find them.

Verbal Warning Is an Oxymoron
“Verbal warning” is an oxymoron, says Segal. Always confirm the verbal warning in writing. If there is nothing in writing, but the manager remembers she spoke with the employee, have the manager put that in a memo. Don’t predate the memo; just make a current note of the past discussion.

If the manager is later asked why he or she didn’t make the note at the time of the discussion, the manager can say, “At the time I was focusing on helping the employee improve. I wish he had had the same focus—then we wouldn’t be here today.”

Delivering a Final Warning
For the final warning, Segal says, state specifically, “This is your final warning.” Be very clear. This is important in three ways:
1. It forces the employee to focus on the severity of the situation.
2. It may encourage the employee to look for another job.
3. It demonstrates your attention to “due process.”

Restate the performance problems in detail and be sure that you require improvement that clearly meets three standards:
• Immediate
• Significant
• Sustained

If you don’t say “immediate,” employees will say, “You didn’t give enough time, and you didn’t make clear how soon I had to comply.”

If you don’t say “significant,” they will point to 2 percent improvement and say, “I’ve improved.”
And if you don’t say “sustained,” they will say, “I did improve—for 3 days.”

Come to HR
Train your supervisors to come to HR in certain circumstances, says Segal. For example, an employee about to get a final warning says to the manager, “I have a stress disorder. I have to have a job that has no stress.”

“Nice job if you can get it,” says the manager, “But sorry, Charlie, there’s no such job here.”

Now there’s trouble. When an employee raises a physical or emotional problem, says Segal, you don’t want the supervisor saying yes or no without going through the ADA-mandated interactive dialog. So make it part of every supervisor’s training that he or she consult with HR if an employee:
• Discloses a physical or emotional condition in response to discipline
• Requests accommodation or leave of absence (at any time).

The supervisor’s response in all these cases can be simply, “Thanks for mentioning this; I’ll talk to HR.”

One of the favorite sayings of HR professionals is that if it isn’t documented it didn’t happen.

Don’t expect managers and supervisors to follow through with good documentation unless they are trained to do so. The team of HR Advisors at A Plus are prepared to visit with your managers and supervisors and conduct effective training on the subject of proper documentation. Let us help with the training and that will “allow you to get back to business.”

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.