By Thadford Felton
Jan. 15, 2009
In today’s economy, many employers are looking for ways to trim costs. Unfortunately, one of the obvious places to look is the workforce. Whether an employer is considering a small or large reduction in force, the employer must be sure to apply objective factors in selecting the employees to be laid off in order to avoid such legal claims as discrimination and retaliation.
One of the many factors that an employer may consider in conducting a reduction in force will be employee performance and productivity. In a perfect world, the review of the employees’ personnel files will give the information needed to compare employee performance and productivity. However, many times employers find that the files have been inadequately maintained, especially when it comes to documenting employee discipline and misconduct.
Documenting such issues can be an uncomfortable experience for most supervisors and managers. However, aside from being a factor to consider in reductions in force, there are many benefits to both the employer and employee in properly documenting employee discipline and misconduct. The documentation may help the employee realize that certain levels of performance or kinds of behavior are unacceptable and can help employees change their performance or behavior in the future.
Documentation also acts as an insurance policy for the company. If the employee later challenges an action that had been taken against him as a result of poor performance or a behavior issue, or files a grievance or lawsuit, thorough documentation can prevent such actions from continuing beyond the preliminary stages.
To assist managers or supervisors in documenting employee misconduct, here are some best practices that managers, supervisors and HR professionals who work with them should follow.
1. Have an employee discipline form. Such a form will make documenting employee misconduct easier for managers and supervisors and it ensures a uniform process. The pre-printed, fill-in-the-blank form should, among other things, have spaces for basic information regarding the employee, the time and date of the incident, a description of the incident for which the employee is being disciplined, the specific policy or work rule that was violated and the action that will be taken against the employee. Make sure that the information is legible and that the person who is completing the form both prints and signs his name on the form so that if follow-up is necessary, you will know whom to contact.
2. Conduct a full and fair investigation. Before an employer decides to discipline an employee, there should be a full and fair investigation of the events. In certain circumstances, it may be appropriate to have someone other than the employee’s direct manager or supervisor conduct the investigation, or review the discipline decision. If there were witnesses to the misconduct, those witnesses should be interviewed. The person conducting the investigation should include on the employee discipline form the names of any witnesses and note in a separate document what they had to say. Sometimes information from other sources may lead a manager to reconsider whether discipline is appropriate.
3. Get the facts. For employee discipline documentation to be effective, it must be factual. The goal in completing such documentation is that anyone who might read the employee discipline form will get a clear picture of what happened and why the discipline was imposed.
4. Be objective. In completing the form, it is important that the manager be objective in describing the incident. The manager or supervisor should describe the conduct that led to the discipline, rather than the attitude of the employee or the manager’s personal views of the employee.
5. Be clear and specific. In completing the form, it is important to set forth the facts in specific detail. The manager should clearly state what the employee did that violated a company policy or work rule. For example, managers shouldn’t say that the employee is lazy, but should describe the facts that have led to the conclusion. For example: “Marion Jones failed to arrive at the work site on time for seven consecutive days. Jones left the site early on each of those days. The work that was assigned to Jones by the supervisor was not completed on any of the days that Jones worked.” The more specific factual detail that you can record on the form, the better. If there is not enough space provided on the form, additional pages can be attached.
6. Complete the form while the facts are fresh. The memory of an event is clearer right after the event, as opposed to days later. Managers should complete the employee discipline form as soon as possible after the misconduct occurred so that their recollections will be clear.
7. Get the employee’s acknowledgement. Managers should make sure that they review the completed form with the employee and have the employee sign it. Such an acknowledgement shows that the employee has been told that that his action was a violation of a company policy or work rule and prevents the employee from claiming in the future that he did not know of the problem. In the event that the employee refuses to sign the form, managers should note that on the form and record the date. In addition, the manager who heard the refusal should sign the form.
8. Allow the employee to explain the conduct. Record the employee’s version of events on the form. While the explanation may not alter the discipline that is being imposed, it allows the employee to tell his side of the story. It also helps to preserve the employee’s version of events in the event he changes his account in the future.
9. Be fair. Managers or supervisors will undoubtedly have different relationships with different employees. They will like some and tolerate others. However, managers and supervisors need to be fair and uniform in imposing discipline regardless of who is being disciplined. If necessary, HR may want to review the organization’s employee handbook with managers and supervisors on a periodic basis to ensure that they are familiar with policies and are uniformly enforcing them. Discrimination in the disciplinary process is unlawful, of course. But it also can ruin employees’ respect for their employer, to say nothing of damaging the organization’s reputation.
10. To the extent that it’s possible, use the discipline process as a positive experience. While the responsibility is on the employee to improve his conduct, you may want to offer a reasonable solution to help. With some employees, it may be beneficial to map out some definitive next steps the employee will take to improve conduct in the future. However, remember that if you are going to offer one employee an improvement plan, such plans must be available for all employees who are having performance problems. Again, it’s a matter of uniformity in the discipline process
Documentation of employee misconduct must be handled as a business issue. While supervisors or managers may feel that their time would be better spent doing anything other than documenting such problems, the process is essential. It helps the employee change his behavior. And it protects the business.
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