Defendable Documentation
Julie Dower Welcome, everyone. First, I just wanted to thank everybody for joining us today. My name is Julie Dower and I am the marketing communications manager here at VensureHR. And I will be your host over the next hour.
Julie Dower We’ll be spending some time today talking about the importance of defendable documentation. It will be covering these relevant topics through a Q&A with our panelist. We will do our best to answer all the questions, but any that we’re not able to get to will be responded to on an individual basis after the session.
Julie Dower This webinar is brought to you by VensureHR and all of our PEO partners. Vensure is the leader of 24-plus partners with clients across all 50 states and Canada. Our agenda for today’s session includes why documentation, preventing the need to document, documentation do’s, documentation don’ts, documenting disciplinary actions, and a Q&A session. If you hear a topic that you need more clarity on, feel free to submit a follow-up in the Q&A box.
Julie Dower We are thrilled to have Robin Paggi joining us as our panelist today. Robin is a seasoned human resource practitioner specializing in training on topics, such as harassment prevention, communication, team building, and supervisory skills. OK, Robin, over to you.
Robin Paggi Thank you. If you’re an HR professional, you probably understand the importance of documenting employees performance problems. Probably your challenge is to convince other people, such as employers, managers, and supervisors to document them. If you need to convince other people to document things that happen at work, the information on the next slide should help you do that.
Robin Paggi Documentation can help prevent and defend discrimination claims. And a lot of times when people are fired, they claim that they have been discriminated against. And so, that’s what the claim turns into is a discrimination claim. And now the purpose of documenting performance problems isn’t just to protect the employer in case somebody files a lawsuit. It’s also to show the steps that were taken to help the employee be successful. And that’s a really important part of documentation, is that you’re not just trying to cover your steps to defend yourself. You’re trying to take steps to help the employee. And when you write down what you’re doing, it helps the employee as well as helping you. So, we’ll talk more about that a little bit later on.
Robin Paggi But one of the things that good documentation can do is create credibility for the employer by showing that employees were treated in a fair and consistent way. And, when you take these steps, it ensures you are treating people fairly and consistently. So, documentation, while a lot of people focus on the fact that, you need to do it in order to cover yourself, you also need to do it to make sure you’re doing what you should be doing and also to help the employee, because that’s ultimately what employers and supervisors are supposed to do.
Robin Paggi All right. So, let me tell you about a court case that happened that demonstrates why documentation is so important. And this happened in a federal court in Wisconsin, an employee complained that she’d been sexually harassed by her direct supervisor, and there was an immediate investigation and the supervisor was fired. So, problem over. However, when the employee was fired two years later, allegedly for her performance issues, she claimed the company fired her in retaliation for her harassment complaint that she filed two years earlier. The trial judge found that she had no claim and issued a judgment for the employer. But she appealed. The appellate court agreed with the lower court and said although, it acknowledged that workplace harassment can hinder a victim’s ability to succeed years after the incident. And that’s one of the things that, if you don’t know, you should know, is that often people who are subjected to sexual harassment, especially in the workplace, do suffer from PTSD, at times. And so, it’s not just, “OK, we fired this person and it’s all over.” It does keep occurring years later. And the court acknowledged this, but they said in this case, this did not appear to be the case. They pointed to the long period of time between the employee’s complaints and her termination, but it was particularly the lengthy, detailed record the employer had kept of the employee’s struggles to meet work standards, her consistent tardiness, and her failure to comply with a performance improvement plan mandating that she had to keep regular office hours and she had to inform her manager she was going to leave the premises for reasons other than a normal lunch break. Had the company not consistently documented these issues, the case potentially could have come before a jury. And you don’t want to go before a jury because you never know what the outcome is going to be. So, while we feel for the employee of having been subjected to sexual harassment by her direct supervisor and possibly having to experience ramifications of that, years later, she did not perform her job, and the employer demonstrated through the documentation that she did not perform her job. And so, that is what protected the employer from that lawsuit.
Robin Paggi Now, a word to the wise, right quick. Employers who want to fire someone should do so quickly because sometimes employees understand that they might be fired. And then to preempt the firing, they jump in with a discrimination, or harassment claim, or something like that. So, when you then follow through on your plan to terminate them, they say, Well, it’s just because I filed this claim and you are retaliating against me, just like the court case I just told you about. So, unless you have a well-documented record of the employee’s performance issues and before you terminate somebody after they file a complaint, then you’re probably going to have a very difficult time defending yourself from a retaliation claim. So, that’s one of the reasons that documentation is so important. There have been numerous people who had did not keep such documentation because they thought they didn’t need to and then fired somebody after they made a complaint, and then they’re in court trying to explain, No, I didn’t fire them because they made a complaint. I fired them because of their poor performance. And then the judge wants to see proof that that’s the reason for firing. And what is the proof? It’s the documentation. So, people just trying to explain, “No, they were poor performers and that’s why they were fired,” means nothing. If it’s not written down, it didn’t happen. You’ve probably heard that phrase.
Robin Paggi Now, one of the things, people ask me sometimes, but we’re at-will employers. And at-will employers mean we can fire people for any reason or no reason whatsoever. Well, that’s not exactly true. There are exceptions to the at-will employment. Now, out will basically does say that, yes, the employer or the employee can terminate their relationship without notice, at any time, for any reason except illegal reasons. Here are some of the illegal reasons:
Robin Paggi Public policy exceptions. What is a public policy? It is when an employee complains, again, usually to a government entity about things like not being paid properly, not being allowed their statutory right to time off. And by the way, since we are coming up to an election, taking time off to vote is a statutory right. And so, that’s one of the things that you should know about and all the details that go along with allowing people to take time off work. So, notifying employees like OSHA that there are safety hazards, or a labor board that people aren’t being paid properly. So people have the right to make those complaints. Employers cannot fire them for doing so. Now, it’s not fun to have an employee working for you who has gone to the government to complain about you. But, if they have made that complaint, then you cannot fire them for that reason. And firing them for a different reason looks a little shady.
Robin Paggi Another reason that employers cannot fire people, or are the exceptions to at-will employment, is when they have a contract or a collective-bargaining agreement. Now, collective-bargaining agreement is a union, when you work in a union organization. And I have worked in two different union organizations, one for the county in which I live and one for the city where I live. And so, when you are a government employee, you usually have a collective-bargaining agreement that prevents you from being fired, except for cause. So, that’s one of the things, is that when you first go to work, usually you’re on probation for six months or a year. And during that probationary period, that is an at-will time. You can be fired for any reason or no reason. They don’t have to tell you why. They don’t have to give you any kind of notice. But once you pass probation, then it’s tough to get rid of you. And you usually can only be fired for cause and have to follow progressive discipline.
Robin Paggi So, just a quick little side note here. I have seen an employee handbook of my clients have given me an order to review the handbook. I have seen them have a probationary period in there when people are first hired. And I asked them if they’re a union and they say, “No.” And I said, “Well, get rid of that probationary period, because that implies that once you pass probation, you can only be fired for cause and it violates the at-will employment agreement.” So, if you’ve got a probationary period at your workplace and you’re not union, you should probably call it an introductory period. But still, I don’t like introductory periods. There’s no real point to them. It’s still kind of implies that once you’ve been here 90 days, or whatever they typically are, then you’re good and in at-will employment, you don’t want to do that, because it is an implied contract, which is another reason that, or the another exception to the at-will employment, implied contracts. Now, this happens when the employer says or does things that implies that the employee is, can only be fired for cause. So, one of the things that also I learned a long time ago is that you don’t classify people as a permanent employee. All right. So, in your classifications, in your handbook, there should not be the word permanent because then that implies that somebody is permanent and good luck getting rid of them. And that voids the at-will employment agreement, if you have wording like that.
Robin Paggi At a previous job that I had, my first day I was asking the operations manager about turnover. “Is there a lot of turnover?” And he said, “No, basically people don’t get fired unless they’ve done something really bad.” And I went, great, Cha-Ching, there’s my implied contract right there, so good luck getting rid of me.
Robin Paggi Another thing with employee contracts is that, if you have been working someplace for a long time, you regularly get job promotions, good performance evaluations, assurances that we’re never getting rid of you, you’re not going to go away unless you do something really bad, that’s an implied contract, and that does void the at-will employment agreement.
Robin Paggi Another thing that’s an exception if, is breaches of good faith and fair dealing. Now, this is not in every state, but for those of us where it is, does apply. If an employer acted unfairly, employees might have a claim for a breach of duty of good faith or fair dealing. And so, examples of that would be firing or transferring employees to prevent them from collecting sales commission, misleading employees about their chances for promotions or raises, making up reasons for firing an employee when the real motivation is to replace them with someone who you’re going to pay less money, soft-peddling the best aspects of a particular job to get people on board, and repeatedly transferring an employee to dangerous positions, dangerous neighborhoods, so that they’ll quit. And that’s called constructive discharge. So, not all states recognize good faith and fair dealing. So know what your state law requires or allows there.
Robin Paggi Another exception is being in a protected class. Cannot fire people because of their race, religion, national origin, ancestry, etc. I’m in California. We have 17 protected classes here. And again, states have their own protected classes. I think Oregon has the most. And some states definitely have fewer than 17. But that’s usually when you fire somebody, that’s what they’re claiming, is that you are firing me because of my race, color, sex, gender, etc. And you can’t fire people for those reasons. So, if you don’t have documentation that demonstrates that’s not the reason that we got fired, or that I fired that person, then it’s going to be tough to defend yourself.
Robin Paggi And so, let’s talk about those court cases. Good documentation can prevent a court case from happening. If you have somebody who’s trying to sue you, and their attorney asked for their personnel file, and there’s all this documentation in there that demonstrates why you fired them, sometimes attorneys don’t want to take those cases or they try to come up with a deal that prevents you from having to go to court, which is good, because then there’s lots of court costs associated with that. So, if an employee tries to sue for wrongful termination, or discrimination, or whatever it is, then the employer has to go on the defense and prove that they did not fire the person for those reasons. Without documentation, again, it’s very difficult to do that. And remember, when you go to court, the people who are in the jury box are usually employees. They’re not employers. And they’re usually employees who maybe have a gripe with a present or past employer, and they couldn’t do anything to that employer to get back at them for their perception of being mistreated or what have you. And so, they’re going to get back at the employer who is in the defendant’s box at that point. So, one of the reasons you don’t want to go to court and some of the ways that you can prevent it. So, that’s why you should document.
Robin Paggi One of the things that we want to try to do is prevent the need to have disciplinary action in the first place. And so, here’s some information on how to do that. First of all, you want to apply all rules and standards equally. Now, how can that prevent the need for disciplinary action? Well, employees who feel that they’re treated fairly are less likely to engage in inappropriate behavior and are less likely to file claims against the company. And so, when your rules and standards are very clear, then that helps as well, because sometimes the ambiguity against, about what’s expected, leads employees to do things that they’re not supposed to do and then you have to discipline them for that. So, when you have very clear expectations and everyone is subjected to the same expectations, that helps prevent disciplinary action, that then requires documentation.
Robin Paggi One of the things that you want to make sure you do is give consistent signals and candid appraisals. And I want to tell you about another court case, when an employee was given a favorable evaluation who did not deserve it. And this court case, the favorable evaluations of an employee who did not deserve them led to a lawsuit. According to a summary of the case, the employee received favorable performance evaluations, merit increases, and no criticism of her work before being terminated. So, she thought the reason she was terminated was because of her race. And she sued for racial discrimination. And her supervisor in court said that the reason the employee was terminated was for poor performance, even though the documatation, documentation demonstrated otherwise. He said, in his defense, that he did not ever tell the employee about her poor performance because of her race. Ironically, the court said, this direct evidence clearly shows that her supervisor acted as he did solely because of the employee’s race. Therefore, the employee established that she had been discriminated against. So, it’s really important that you are consistent in your signals, because inconsistency leads to claims of discrimination, but that you are also candid. Now, you don’t have to be brutally honest with people, but you do need to tell them the truth. And that’s one of the things, supervisors, some supervisors, are very reluctant to tell people the truth. They don’t want to hurt people’s feelings or they don’t want people to think that they’re picking on them, as this supervisor did. And that just ends up getting you in trouble. The courts wonder, were you lying then or are you lying now?
Robin Paggi All right. Don’t delay decisions, as I mentioned earlier. But another court case to tell you about that demonstrates this. This happened because an employee was terminated after telling her supervisor that she was pregnant. So, you don’t terminate people right after they reveal that they’re pregnant. That’s against the law. It looks like you’re terminating them because of the pregnancy. That’s the illegal part. The employee said she was terminated because of the pregnancy and her employer claimed, “No, she was terminated because she was a bad employee.” All right, so they go to court and the employer has to prove they terminated her because of being a bad employee. However, this is what happened. There was no written documentation supporting the claim that the employee’s supervisor intended to terminate her before she disclosed the pregnancy. Her supervisor claimed to have written and then lost an official document outlining his reasons for terminating her. Supervisor failed to document any coaching sessions he allegedly provided her, which was a violation of company policy. So, you don’t want to violate your own company policy when you’re trying to defend yourself. And her personnel file was missing. All right, so that was just a mess and she got to go to court on that one. So, an absence of documentation or shoddy documentation poses lots of legal risks.
Robin Paggi One of the things that you want to do is give clear instructions and warning. And, so another lawsuit that demonstrates how making sure that you are warning employees about what can happen if they do not improve their performance can help you. So, this employee also filed suit for discrimination, as, so I said earlier, is that a lot of times when employees are fired, they will file a discrimination claim. And that’s the claim that you have to fight. And they will say the reason you fired me is because of my race, color, whatever, and you have to demonstrate that’s not the reason we fired. All right, so, back to our court case. Employees said that she was fired because of her race and employer said, “Nope, she was fired because of poor performance,” and they were able to submit corrective action reports that she had received. She had received two about her store’s poor performance, and then she received a third for missing a mandatory meeting. And on that third corrective action report, it said, “Failure to meet expectations one more time may result in termination.” And so, she closed her store early one day and they fired her. And so, all of that documentation demonstrated she was fired for her poor performance and for not following instructions. And so, the employer won that court case.
Robin Paggi You always want to hear an employee’s side before taking action against them. And last week, I talked about investigations and how important it is to make sure that anyone who is accused of something, you hear their side of the story. One of the reasons is because that might change your idea of what actually happened. And there was a great demonstration of that in a short article that I read on why you want to make sure you’re asking people to tell you what happened before you take action against them. So, what happened in this case is that there was a new employee who was gone to a different department. So, the employee had worked for the organization, but she was transferred into a different department, and she was late on several occasions and her new manager really didn’t know her that well and wanted to fire her. And so, went to HR and said, “I want to fire her.” And HR said, “Well, have you asked the employee why she’s late?” No. Ask the employee why she’s late. And when the supervisor did, lo and behold, the employee was late because she was training her replacement in the other department. And so, finding out this information before going right into disciplinary action can help prevent you from looking silly. So, that’s one of the reasons that you always want to hear an employee’s side of the story, because you might think you know the story, and you want to act on that story, and you don’t know the story. So, find out the story first.
Robin Paggi Another thing, you want to avoid making decisions on subjective feelings. Now, subjective feelings is things that we all feel. And one of the things we all have biases and I’ve talked about that in previous webinars. By the way, all of our webinars are recorded. And so, if you just go to vensure.com, you can see a list of all of our webinars. And so, we do have those available for you. But in a previous webinar, I had talked about unconscious bias and the fact that we’re we all have biases that affect how we see things, what we feel about things, all of those types of things. And when you are making decisions about employees, that subjectivity will come into play on occasion. We work with people that we like and we work with people that we don’t like. And if you are supervising people that you do not like, chances are it will look like the reason that you are disciplining them is because you don’t like them. So, that’s one of the reasons it’s very important to rely upon the facts. And those facts are usually company policies and performance standards. So, that’s something that everyone should have, first of all, is company policies and performance standards. And second of all, when you’re in a supervisory management HR position, you should know what all of them are. And then, when employees need to be disciplined, it’s because they’re not adhering to those. And it’s very easy to demonstrate that somebody met performance goals or they did not. They violated company policy or they did not. So, you really want to stick to the facts.
Robin Paggi Explain decisions to affected employees. Now, you’re not required to do so, in most cases, but when employees understand the reasons behind decisions, they’re more than likely going to follow rules and less likely to act out. So, explaining decisions would be, We’re implementing this new policy. And if you don’t explain why you’re implementing the new policy, sometimes people just won’t go along with the policy. They won’t follow the policy because they don’t like the policy, they don’t understand it. So, then, you’ve got to discipline them for that. When you explain this is the reason behind it, it gets people on board, most of the time, and then you don’t have to discipline them.
Robin Paggi Keep communication channels clear. One of the things that a lot of employers do is have an open-door policy, which is a great thing to have. An open-door policy doesn’t mean your door is always open. It means that people can come talk to you when they want to about anything they want to. And when you have those policies in place and employees fail to take advantage of them, then that helps you in your defense, if they go to a government entity to complain about you. But also it lets employees know we want to hear complaints. We want to hear your thoughts about things. And when they are invited to communicate, they’re more likely going to communicate. And that helps you find out things that you need to know.
Robin Paggi The next one is near and dear to my heart, and that’s training supervisors. And the reason I love this one is because before COVID, that’s what I did all the time, going around to different clients and training their supervisors on how to be good supervisors. Now, a lot of times employees are promoted into supervisory positions because they’re really good at their job and no one provides them any training on how to be a good supervisor, which requires a different skillset. One of the things that good supervisors do is they know how to interact with employees in a way that gets results. That’s their job to get results from the people they supervise. So, they need to know how to interact with people to get those results. Bad supervisors frequently have problem employees. Why is that? Because the way they supervise inspires people to not give them the results that they need. And so, you want to prevent disciplinary action, train your supervisors on how to get the results that they need.
Robin Paggi And finally, on this slide, keeping accurate records. And hopefully you understand why it’s so important to keep accurate records of employee disciplinary actions, not only, again, if you go to court, but once again, documentation is helpful for employees as well as employers. A discussion with employees about not meeting performance expectations or violating policies helps them to know what’s expected of them. And, these kinds of discussions are critical to their employees’ success. So, that’s one of the things I’m going to talk about in a moment, is that your documentation should demonstrate you are trying to help the employees succeed, because that’s what you’re trying to do.
Robin Paggi Some do’s and don’ts of documentation. First of all, again, be candid, which means be honest with people. You don’t do anyone any favors of not being honest with them. I mean, for example, you might want to avoid a difficult conversation with somebody because they’re not meeting expectations. But if you avoid that conversation, they don’t know they’re doing something wrong and they can’t fix it. If you avoid that conversation, then it doesn’t help them to perform or succeed. So really, when you’re having those conversations with employees, and they don’t want to hear what you have to say because you are correcting them. But the thing is, is that if you focus on, I’m trying to help you succeed and we’re putting in in writing so that it’s clear and you understand that it’s important, then that is helpful.
Robin Paggi One of the things that you need to do is be very specific in, in your conversations, but also in your documentation. And so, one of the things that always you have on documentation is the date that things happen, maybe even the time that things happen, the facts of what happened. And so, you want to provide the employee with a clear statement of facts when you are telling them if they violated policy, exactly what policy and how they violated, if they didn’t meet performance standards, exactly what performance standards they were and how they did not meet them. And so, being very specific helps employees to succeed.
Robin Paggi So, I received some feedback from one of my webinars, and it was great because it went into all of this detail about the concerns that the participant had. If the participant had just said, “I didn’t think you did a very good job,” there’s nothing I can do about that. But when the participant says specifically what her concerns were, that’s good feedback, that’s something I can do something with. And so, that’s what you want to have in your feedback and also in your documentation. Now, you want it to be objective, again, and objective means that you are not making subjective statements. Now here’s one of the things that I hear people say, sometimes. This employee has a bad attitude. You want to get rid of attitude out of your vocabulary. Don’t tell someone they have a bad attitude. First of all, the reason for that is that attitude is a feeling someone has and you don’t know what people are feeling. And so, don’t tell them what they’re feeling. And then the other thing is that how do you fix a bad attitude? So, what you want to do in your feedback and in your documentation is to describe what you see that makes you think somebody has a bad attitude, such as when given feedback during her performance evaluation, “Robin rolled her eyes sighed, raised her voice when responding, and left the room before the conversation ended, slamming the door after her.” OK, so you want to paint a picture of what the employee did so that anyone who reads that documentation would come to the same conclusion that you have come to. So, that’s a really important part of it.
Robin Paggi Also very important is timeliness. But one of the things it’s important to give feedback in a timely manner. And the reason I keep talking about feedback is your documentation is usually a reflection of the conversation that you’ve had with the employee, which we’ll get to next. But you want to give feedback and write it up shortly after the situation happened so that it can be corrected. And also, if time goes by, then you might forget or the employee keeps making mistakes and so you want to get in there. However, having said that, you don’t necessarily want to do it on the day something happened because you want to give yourself time to be able to compose your thoughts and express yourself. But here’s one of the things, especially as we get older, is that we forget what happened. And we don’t remember the specifics, and then we’re trying to remember them, and maybe we might make them up or something and that’s no good. So, waiting until later the next day affects the quality of the documentation because it’s based upon what you’re trying to remember. Another thing about our memory is that it starts playing tricks on us. As soon as something happens and we start telling ourselves about it in our brain, our brain starts to change it a little bit. And then when we go home and we tell people there, then we sometimes change it a little bit. And so, it’s like the telephone game. Every time the story is told, it changes a little bit. And you don’t want to do that.
Robin Paggi Consistent. If you are going to write up one employee for being late, you need to write up all employees for being late. Inconsistent treatment of employees leads to discrimination claims. You’re treating people differently. And people frequently think the reason you’re treating me differently is because of my race, color, sex, gender, etc.
Robin Paggi Balanced. One of the things that you want to do is when people do something above and beyond the call of duty or they received a compliment from a customer or something, you want to document that as well. And the employee should know about it and the employee should know it is going in their personnel file. So, that’s one of the things, is that you have an employee for a long time and all you have is documentation about how they did not meet expectations, and then you go to fire them, and that’s all you have, you have nothing good about them whatsoever, courts are going to wonder, why did you keep this employee around for so long when they’re obviously such a bad employee? So, you want to make sure that you’re documenting the good things employees do as well. And, as I said, the documentation is supposed to be helpful. And so, you want to put on the documentation what people can do to succeed, and make sure that that is the focus of your conversation with them.
Robin Paggi And finally, keeping third-parties in mind. Remember that everything you write down might be viewed by the plaintiff’s attorney, by a judge, by a jury, and they are going to determine whether your documentation is valid based upon how professional it sounds, and then you’re going to have to defend it. And so, any time you write things down, even on emails, make sure that you’re keeping in mind other people might read this. And I want to make sure that I’m OK with what they’re reading.
Robin Paggi First of all, abbreviating can be a problem. And one of the reasons for that is that people might not understand what you’re abbreviating and I’ll give you an example that I read about. I think it’s true. It seems pretty fantastical to be true. But here it is. A jewelry store owner was interviewing people. He interviewed a man who had no jewelry sales experience. He wrote down on the application, “No Jew.” He did not hire the man. The man filed discrimination claim against him for not hiring him. And then the jewelry store owner had to hand over the hiring documentation. And there on the application was written, “No Jew.” and the man was Jewish. So, I mean that seems fantastical, but who knows, it could have happened. So, abbreviating can be a problem for you.
Robin Paggi Editorializing is putting your own spin on what happened. So, an editorialize, editorialization would sound like, The employee was irresponsible in reporting the day’s financial receipts. So, you are characterizing this person as irresponsible. What you should say instead is, “The employee did not enter the amount of daily receipts in the ledger. This caused a delay in reporting the monthly financial performance.” And so, you just want to say what the facts are so that everyone can come to the same conclusion on their own, that the employee didn’t do what the employee was supposed to do.
Robin Paggi Managing employees through email. It’s perfectly fine to send an email after a conversation with an employee to recap what you said. And I found this to be very useful, having a conversation and then sending the email to say, OK, just to summarize what we’ve talked about, I said this and you said this, and this is our understanding. Is that your understanding? And when they reply, “Yes,” OK, I’m going to keep that email. And if they reply, “No,” I’m going to ask them to come back so that we can talk some more. One of the things that I talk about a lot in training is how our communication is so misunderstood. People hear what they want to hear. And so, you need to put things in writing so that you have mutual understanding, especially asking them if that was their understanding. That’s what email has a good purpose for. But email does not take the place of having the conversations with people. And there are lots of supervisors who don’t like to have difficult conversations, so they try to do it through email instead. Please do not do that, even while we’re working remotely. Pick up the phone or have a Zoom call instead of just sending an email.
Robin Paggi And, don’t forget to memorialize verbal warnings. So, we’ll talk about the different warnings in just a moment. But, that’s one of the things that I still have people who do not understand. You are supposed to document a verbal warning. They think that it is a written warning if I document it. No, it’s just documenting that you gave someone a verbal warning. And one of the reasons that that is important is to establish this was a form of discipline. It’s a verbal warning, which is discipline. It’s not just a conversation that we’re having. And second of all, if you don’t write it down, then sometimes people don’t think it ever happened. And so, they say, you never gave me a verbal warning. I don’t remember that. And so that’s one of the reasons that you document it.
Robin Paggi Now, how do you do the documentation? I bet you’ve been waiting for this one with bated breath. First of all, before you start in with the progressive discipline that we’ve got here, you want to coach people. And coaching people is letting them know that maybe they didn’t meet expectations or what have you. It’s not that serious of a situation, but you need to let them know. And you do want to write those down, too. So, here would be an example of what you would write down for a coaching session. Mike was 15 minutes late to work today. When I asked why he was late, Mike said he overslept. I told Mike he is expected to be at work on time, every day and to contact me if he is late in the future to give me his estimated time of arrival. Mike agreed to do so. OK, so that’s what it is. I said, he said, I said, he said. The end. Now, you write this down for yourself or a send a little email to yourself so you know you’ve had this conversation with Mike. You don’t need to put it in a personnel file. You don’t need to have Mike sign it or, even know that you wrote it down. You are just letting Mike know what the rules are and that he needs to adhere to them.
Robin Paggi Now then, if Mike is late again, then we need to go to a verbal warning. And, the verbal warning is easy now because we already have what we said the first time. The verbal warning is going to refer to the previous conversation that we’ve had with the employee. And so, demonstrating I’m not just giving you a verbal warning right off the bat. We’ve already had this conversation. It states that this is a formal verbal warning because of repeated incident. It reminds the employee of company policy and expectations. And what I like to do is I like to attach the company policy to the verbal warning so that they can see I’m not making this up. Here it is right here in our employee handbook and it has an encouraging statement. So, it would sound something like this, “Mike, on April 27th, 2020, you were 15 minutes late to work. I told you then that you were expected to be at work on time and to let me know when you’re running late in the future. Today, you were 30 minutes late and did not call me to let me know. When I asked you about it, you said you forgot. Company policy says that employees are expected to begin their shifts on time and to let supervisors know when they are running late. See company policy attatched. Mike, I want you to be successful here and you need to know that you’ve got to remain, you’ve got to be on time in order to remain employed.” OK.
Robin Paggi So then, if Mike is late again, the written warning is almost already written because of all of the facts that you already have. And that’s the thing you just keep adding to it. Now, a verbal warning is to inform employees of their performance issues so they have an opportunity to correct them. A written warning is more informing them of what could happen if they continue down this path. So, a written warning based upon Mike being late would sound something like this, “On April 27, 2020, you were 15 minutes late to work. I told you then you’re expected to be at work on time and to let me know when you’re running late in the future. On May 1st, 2020, you were 30 minutes late. Did not call me to let me know. You said you forgot. You were given a verbal warning and a copy of the company’s policy regarding tardiness. You were 30 minutes late again today. Did not call me and said you forgot to again. Mike, this is your final warning about being late. Failure to arrive to work on time or a failure to call me if you are late may result in termination.” And we always have that may in there because we don’t want to lock ourselves into. We don’t want to say if you’re late, again, that will result in termination because things happen and we don’t want to get locked into doing something that we might not want to do.
Robin Paggi Now, it’s a good practice to have people sign verbal or written warnings, but they’re not required to. One of the things that you can tell them is that signing it doesn’t mean that you’re admitting to it. It just demonstrates that you’ve received it, that we’ve had this conversation. And it’s also a good idea to allow employees to write down their own thoughts, a rebuttal, if they want to. But they don’t have to sign it. And that’s one of the things when people say, Well, I’m not signing that, well, that doesn’t mean it goes away. We’re just going to write down, refused to sign, and then put it in the file.
Robin Paggi Now, a performance improvement plan is like last chance agreement. And I like to use these when employees are sent to me for coaching because it tells me exactly what the problem is and what the expectation is, and then we can create strategies on how to meet those expectations. So, a performance improvement plan states the exact specific performance that needs to be improved. It states the level of work performance expectation and that it’s got to be performed on a consistent basis. It identifies the help that you’re going to give the employees, such as coming to coaching sessions. Communicates a plan for providing feedback to the employee. So, we’re going to get back with you on a monthly basis, or a weekly basis, or what have you to discuss your progress. Specifies consequences if performance standards are not met and provides any other helpful information, such as the employee handbook. Read this so you don’t violate our policies anymore. So, a performance improvement plan is especially good when somebody ends up being terminated because it demonstrates all the steps the employer took in order in order to try to help the employee be successful. And a lot of times the employee is successful. Coaching usually works pretty well for me with employees to get the results that I need from them, because there are consequences to what happens if they don’t turn things around. And it’s amazing what people can do if there are consequences to their behavior. Which reminds me, if you’re just gonna write people up over, and over, and over again, and there are never any consequences, don’t bother. I mean, I had a client tell me, “Oh, we’ll write people up 10, 11, 12 times.” Well, all that’s telling them is that their behavior is not going to lead to anything detrimental for them. So what, it’s another write-up.
Robin Paggi Suspensions can be a form of disciplinary action. And you also can suspend people when you are doing investigations that involve them, and it would be better for them not to be there. And, so, with the suspension documentation, you want to put the reason for the suspension, whether it’s disciplinary action or because of an investigation, how long it’s expected to last, whether it’s with or without pay, and you may withhold pay as a form of discipline. It’s easy when it’s with hourly employees, but it’s a little trickier with exempt employees. So, if you’re going to do that, consult your legal counsel. On our documentation, if it’s an investigation, you want to acknowledge that it’s not an assumption of guilt. It’s just to enable the investigation and the employee’s rights and obligations during the suspension. So, for example, you might need them to be available to come back to work as quickly as possible. And so, you want to put that on there and who they can contact if they have questions or concerns, which they most likely will.
Robin Paggi And then finally terminations. Federally and in most states, a termination letter is not legally required. However, again, in some states it is a requirement. I’m in California. So what, what is a requirement, it’s not a termination letter, but some form of documentation that says the employee is terminated. Here we have a notice to employee as to change in relationship. So, this is a form that we can just download off of government site. And, on that form, it says what’s happening here? Is it a layoff? Is it furlough? Is it a termination? What is it? And it also gives the employer the opportunity to say why the employee is being terminated. Now, employment attorneys usually say, don’t put the reason employees are terminated because then they’ll try to fight it. And then you’ve got a fight on your hands. And you don’t have to tell them why they’re being terminated. But, I’m of the mind that you do want to say why they are terminated and you want to have all of the documentation that you have had on them that led up to the termination along with that notice to give them. And the reason for that is that they are going to go try to file for unemployment. And, if they have all of that documentation that they give to the unemployment department, then chances are they won’t get unemployment. Not always, but chances are. So, there’s no yes or no on do you write down the reason for termination. You’re not required to do it, but you might want to do it so that then you don’t have to deal with unemployment.
Robin Paggi All right. So, that is the information that I have for you. And, just want to end this by saying effective documentation can provide a solid legal defense, but it also can help employees know what they’re supposed to do, and take it seriously, and be helpful, and that’s what we’re really trying to do. Now, do you have any questions for me?
Julie Dower Thank you so much, Robin. OK, so let’s go ahead and jump into our Q&A. OK, so here’s your first question, Robin. Is it OK for supervisors to keep a file on employees separate from their personnel file in HR?
Robin Paggi It is. And as I said, when you coach an employee, you do want to write down that you coach the employee, or send yourself an email, or what have you. And this does not need to go into their personnel file. And so, you can have your own file about these types of conversations that you have with employees, so that you can refer back to them if it ends up going to, into disciplinary action.
Julie Dower Let’s see, our next question. Do employers have to write up an employee three times for the same offense before they can terminate the employee?
Robin Paggi Some companies have a policy on that. And, I remember a good friend of mine saying to me once, You have to write up employees three times for the same thing before you can fire them. And she thought that that was the law. That’s not the law in California, anyway. And, I would imagine in most other states, because most states are at-will employment. So, but you have to follow your company policies. And I told you about a couple of court cases where supervisors did not follow their own policies and that got them into bigger trouble. So, if your company policy says, This is how we do it, then that’s what you need to do. Also, usually if you have a collective-bargaining agreement, that is going to be part of the agreement, is that you go through progressive discipline. You have to get three warnings for the same offense. So, it’s all about looking at what your policy says, looking at what your state law says, looking at what your practices are, even if you don’t have it written down. But everybody knows that you always get three warnings beforehand, then that’s binding as well. So,, you need to look at all of those things to determine what the answer is at your workplace.
Julie Dower OK, that’s great. All right. So, this is from a client and it seems as though they have some employees who are just not returning to work. They’re, they’re, it’s kind of job abandonment. So, how many attempts would you recommend the employer reaches out to or tries to reach out to the employee before declaring job abandoned?
Robin Paggi Well, first of all, again, look at your company policy and see if there is anything in there, because frequently there is something that’s a standard part of handbooks, is that if you don’t show up for three days, then we’ll consider this job abandonment. So, start there. And then again, look at state law in the state that you’re in to see if it says anything about that, and look at what companies are doing. So, that’s one of the things that I mean, this is new. None of us have lived through a pandemic before. And so, Google, What are other companies doing? Because in the absence of policies and laws that guide us, when we can benchmark what other people are doing, then that helps us know the decision there as well. But, since it’s usually three days that employees, if they don’t show up, I would say three attempts. And if you do make it three attempts, then stick with that. So, you can make up policies and procedures. But once you do, make sure you are consistent with them.
Julie Dower That’s great, so I know we only have two minutes, but I think this is going to be a kind of a quick one. So, Is there a traditional or reasonable time that you would apply to a PIP for an employee before terminating them? Is there like an average time that you would apply?
Robin Paggi That you would apply for what?
Julie Dower For, for a PIP, for a performance improvement plan. I’m sorry.
Robin Paggi Oh, a PIP, OK. You’re getting jazzy on me there, Julie. Is there is a, a certain amount of time? I would imagine. Usually performance improvement plans that I get when people are sent to me, we meet once a week for six weeks. And the reason for that is that it takes that amount of time to undo a bad habit and create a new habit. And so, it ends up being six weeks. Now, that doesn’t mean they always go all the way through the six weeks because sometimes they do something that gets them fired before then. But, that’s one of the things, especially as people get older, they spend a long time developing these habits that just aren’t undone with one little quick conversation. So, I like the six weeks simply because that’s what we do. And again, I usually get pretty good results from it because it usually takes that long in order to help people undo the bad habit and create the new good habit.
Julie Dower Oh, that’s perfect. All right, well, I think that’s it for our questions today. Thank you so much, Robin. You covered a lot of really valuable information. So thank you, everybody, for your time today. Please don’t forget to locate this webinar and others that we’ve recorded by visiting vensure.com and navigating to our webinars page. Everybody will be receiving an email with a recording link, so that you can view the recording or download the slides. Have a great afternoon. We’ll talk to you soon.
