Documenting Employee Discipline: Policies, Procedures and Best Practices

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Documenting Employee Discipline: Policies,

Procedures and Best Practices


Ebone Hamilton Lewis, Shareholder, Littler Mendelson

(973) 848-4700

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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Creating Clear,

Bulletproof Documentation

Concise & Legally

Air-Tight Write-Ups

Your Speaker


Eboneé Hamilton Lewis, Esq.



The Fish Bowl Effect


Operate as if third parties may later scrutinize your 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 e-mails caused significant issues in litigation



Why is documentation important?

ƒ It prevents later denial

ƒ Aids your memory

ƒ Minimizes misunderstandings

ƒ Provides emphasis

ƒ Reveals patterns

ƒ Supports future action taken toward that employee



Getting It Right –

Key Questions Before You Write

ƒ What is the purpose?

ƒ Is this an urgent situation?

ƒ Who is involved?

ƒ Who will see this document?


What you need to document

ƒ EVERYTHING! ƒ EVERYTHING! – Formal Discipline – Informal Counseling – Problems – Meetingsg – Incidents – Good things?



When should you document?

ƒ Immediately after an incident occurs

ƒ As often as the problem requires it

ƒ As part of a regular review process

ƒ Calendars will help you re-create a timeline

Who is your audience?

ƒ The employee about whom the document

pertains? pertains?

ƒ Managers/supervisors

ƒ HR



Types of Documentation

ƒ Formal Corrective Action N ti


ƒ Memo Summarizing Verbal Warnings & Directives

ƒ Handwritten Notes

ƒ Email

ƒ Reports of Investigations

ƒ Performance Appraisals

Types of Documentation (cont’d)

ƒ Chronology of Events

ƒ Notation in calendar or department log books

ƒ Meeting agendas/minutes ƒ Attendance records ƒ Telephone records

Ph t h id th ƒ Photographs, videos or other




Getting It Right

What should you include?

ƒ Date, location & time of incident(s)

ƒ Which rule or policy was violated, if any ( )

ƒ Date of memorandum ƒ Detailed description of

employee’s conduct ƒ List of specific

examples (current and

, y

ƒ Consequences/discipli ne and what employee must due to correct behavior

ƒ What will happen if the examples (current and

past) ƒ Names of people involved/witnesses pp behavior continues ƒ Objective recording of your observations

When should the employee

get a copy?



The Most Common Problems

ƒ Too many cooks

S id d ti

ƒ Snide and sarcastic comments

ƒ Being too nice

ƒ Retaining drafts

ƒ Casual dialogue Mi i ti d

ƒ Mixing negative and positive comments

ƒ Attempting to offer explanations for the employee’s conduct

• Personal opinions


What not

not to include!

to include!


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)g )

• References to prior irrelevant history • Careful of retaliation



Examples of

Good and Bad


Not a team player



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


does not fit our image



As a receptionist, Sue is in a public contact

position. On four

occasions (list dates), she has been orally y counseled not to work on her nails at the front desk, not to chew gum while working, and not to color her hair blue.



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 ofSome 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

ƒ Written documents such as e mail reports memos e-mail, reports, memos, notes, past evaluations and letters

ƒ Meeting agendas ƒ E-mail and voice mailE-mail and voice mail ƒ Photos and videos ƒ Calendars



Performance Appraisals

The Benefits:

▓ Opportunity to honestly review

performance standards and p


▓ Written rationale for compensation adjustments

▓ Analysis of employee’s strengths/weaknesses

▓ A hi l i

▓ A vehicle to increase

motivation and renew commitments

▓ Useful in resolving future issues



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

9 Gather and review

documentation from entire review periodp

9 Review prior


9 Review job



Preparing the Written

Performance Evaluation

9 Focus on factual information and actual job performance, not personality

9 Give specific examples 9 Give specific examples 9 Be honest, concise and logical

9 Avoid vague, technical words or


9 Be mindful of FMLA/ADA when

addressing attendance issues

9 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


▓ Changing a review form after it’s been discussed with or



Documenting Investigations

ƒ Address all issues raised

ƒ Make a record of your reasoning and steps taken

ƒ Avoid unnecessary controversial comments

ƒ State facts, not conclusions of law

ƒ Set forth


Documenting Investigations

ƒ “I said/You said” – how to document the employee’s words 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?If so, should employee sign?

ƒ When should outside counsel be hired to document investigations



Solutions Pre-Claim

ƒ List facts, not opinions

ƒ Delete drafts & limit copies

ƒ If reasonable chance of a legal claim:

–Include counselInclude counsel –Use privilege

Documenting Disability-Related Issues


Confidentiality of medical conditions


Separate file


Don’t document disabilities, document requests for accommodation



A “Documentation Culture”

within your Organization


HR is your friend

– Consult early – Use their expertise


Managers and supervisors must understand this is a job requirementj q

Ask Your Managers...

ƒ Did you ever discipline an employee or give a bad performance appraisal

p pp

– Was it easier when you documented specifics to support your action?

ƒ Did you ever fire an employee?

– Was it easier when the employee had a final warning in his/her file

ƒ Did you ever have a poor performer improve? – Would it have happened without documentation?

ƒ Did you ever inherit a job from a previous manager? – How did they leave the relevant files?



Documentation in an Electronic Era

Common Evidence in Employment Cases

ƒ Personnel Files ƒ E mail ƒ E-mail ƒ Investigation Records ƒ Payroll Databases ƒ HR Databases ƒ Computers/Home Computers ƒ PDAs ƒ SIM cards

ƒ Text and Instant Messages

ƒ Calendars

Documentation in an Electronic Era




– Informality

– Joking

– “No one will

ever see this”




Eboneé Hamilton Lewis, Esq.

Littler Mendelson P C Littler Mendelson, P.C. One Newark Center, 8th Floor

Newark, NJ 07102 973-848-4734






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