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  1. 1. DOCUMENTING DISCIPLINEChristina M. JepsonApril 25, 2013Holiday Inn Salt Lake City Airport Westparsonsbehle.comLORMAN EDUCATION SEMINAR
  2. 2. 2 Why is it important to carefully andaccurately document discipline ofemployees?
  3. 3. 3 Employees can bring claims or lawsuitsbecause of discipline and terminations Discipline and terminations create risksunder the discrimination laws and otheremployment laws
  4. 4. 4Assessing Risk
  5. 5. 5Specific Risks Employees may bring claims/lawsuits– Protected class members under Title VII, ADEA, ADA– Those who participate in protected proceedings– EEOC and UALD charge filers– Investigation participants– Those who oppose allegedly discriminatory conduct– Other complainants– Investigation witnesses– Those who exercise their rights– Example: an employee who requests ADA accommodation
  6. 6. 6Who is High Risk?Any employee who(1) Is in a protected class;(2) Is in circumstances that suggest that he or shemay file a claim; and(3) Is subject to discipline
  7. 7. 7Managing the High-Risk Situation Properly document all actions takentoward and interactions with the high-riskemployee Guard against careless communications Consult with counsel early about high-risksituations to get guidance
  8. 8. 8Documentation Techniques
  9. 9. 9The documentation that is created canshow: That you did everything you were supposed todo in furtherance of the employee‟s rights:– ADA accommodation process– Investigated and corrected promptly any claims ofdiscrimination or retaliation That your discipline and/or termination of theemployee were for legitimate business reasonsand not discriminatory:– Employee was a bad performer
  10. 10. 10Documentation Throughout Employment Agreements with employees Acknowledgements by employees Employee requests for accommodation Employer responses to accommodationrequests Complaints and investigations Employee performance issues Employee misconduct Discipline and termination decisions
  11. 11. 11Documentation Throughout Employment Improved communication Uniformity in business decisions Lawsuit defense aides:– Faded memories– Credibility battles– Binding admissions
  12. 12. 12Documentation in High-Risk Settings All interactions with the employee All crucial steps taken by the employer All buy-ins/acknowledgements by theemployee
  13. 13. 13Documenting Misconduct What is misconduct? What is proper discipline? Does consistency matter? What is proper documentation?
  14. 14. 14Documenting MisconductSusan Supervisor observed an incident. Her proper signedwrite-up might look like this:“On 9/15/13, I, Susan Supervisor, saw a puddle of water onthe floor in the west service hall. I told Jacob Janitor of thepuddle, where it was, and to please clean it up immediately.He said, „I‟m busy right now. I‟ll get to that when I get aroundto it. If you need it sooner than then, you can $@&% well do ityourself.‟ I verbally warned him that his response wasunacceptable, that his behavior would be noted in his file, andthat further disciplinary action might be taken. Jose Assistantwitnessed this exchange, and I asked him to write up astatement.”
  15. 15. 15Documenting MisconductCompare that with:“There was something on the floor in the hall. Itold Jerry Jacob to take care of it. He mouthedoff and blew me off.”
  16. 16. 16Documenting MisconductOllie Jones told Susan Supervisor that he heardJacob Janitor was pushing and shoving others inthe hallway. Susan‟s proper signed write-up mightlook like this:“9/15/13: 2:15 p.m.: Ollie Jones came in and toldme he overheard from Wally Witness that JacobJanitor was pushing and shoving others in thehallway.”
  17. 17. 17Documenting MisconductCompare that with:“Ollie Overhearer told me Jerry Janitor wasgoofing off.”
  18. 18. 18Documenting MisconductSusan‟s proper signed write-up (cont.):“9/15/13, 2:20 p.m.: I called Wally Witness to myoffice and asked about what he knew. He saidhe saw Jacob Janitor push and shove AndyAnnoyance and Prickly Pete in the west servicehallway. Jacob was yelling and Andy and Peteabout spilled water. Andy fell down but got rightback up and did not appear to be hurt. I askedWally to write up a statement.”
  19. 19. 19Documenting MisconductCompare that with:“Wally Witness told me Jacob Janitor pushedand shoved a couple other guys in the hallway.Jacob was yelling about something. One of theguys fell.”
  20. 20. 20Documenting MisconductSusan‟s proper signed write-up (cont.):“2:30: Called Jacob Janitor into my office. Asked him ifhe was pushing and shoving others in the hallway. Hedenied it. Told him I had a witness. Jacob then admittedto yelling, pushing and shoving. Jacob admitted Andyfell. Said he was mad because Andy and Pete hadintentionally spilled the water and a lot of other thingsthat day, and had gotten him in trouble with me. Had himwrite up a statement and sign it. See attached. Told himhis behavior was unacceptable and the disciplinaryaction would be taken.”
  21. 21. 21Documenting MisconductCompare that with:“Jacob Janitor denied everything but thenadmitted it. Said he was mad because Andy andPete had gotten him in trouble with me. Told himhe shouldn‟t have acted that way.”
  22. 22. 22Documenting MisconductSusan‟s proper signed write-up (cont.):“9/15/13, 3:00 p.m.: Called Bill Boss to advisehim of situation and arrange time to meet todiscuss appropriate discipline.”
  23. 23. 23Documenting MisconductCompare that with:“Called Bill Boss.”
  24. 24. 24Misconduct Documentation How does the misconduct documentationhelp the employer avoid liability?– Encourages adequate investigation– Permits review– Promotes uniformity– Provides contemporaneous evidence of factsfor use in lawsuits
  25. 25. 25Improvement Plans Can performance be improved?– Usually– Do the job requirements and the skill setmatch?– Where skills are lacking, can training fix it?
  26. 26. 26Improvement Plans What are the keys to improvement?– Clear communication of expectations– Clear feedback on meeting expectations– Playing to the employee‟s strengths– Getting the employee to buy into the goals– Getting the employee involved in creating thesolution
  27. 27. 27Improvement Plans What if the plan doesn‟t work?– Evaluate the communication dynamic– Re-evaluate the job requirements and the skillset– Revise the plan, revise the job, changesupervision, or change the employee
  28. 28. 28Improvement Plans What does proper documentation look like?– Objective goals– Detailed plan to meet goals• Employee‟s part• Supervisor‟s needed contribution– Ways to measure improvement– Timeframe for improvement– Employee or joint creation
  29. 29. 29Improvement Plans What does proper documentation looklike?– Contains employee acknowledgements:• Of the performance problem• Of the employee‟s agreement to the plan• Of the employee‟s knowledge that his failure toperform may result in additional disciplinary action– If acknowledgement is refused – documentthat
  30. 30. 30Improvement Plans What does proper documentation looklike?– Contains disclaimer:• Plan is not a contract• Employer does not have to facilitate improvement• Employee remains at-will and subject totermination at any time
  31. 31. 31Improvement Plans How does the improvement plandocumentation help the employer avoidliability?– Undermines employee‟s later claim in lawsuit that hisperformance was not the reason for his termination– Caveat: short-cutting improvement timeframes canpermit argument that protected class status causedthe short-cut and that had the full time been given, hewould have performed
  32. 32. 32Documentation Is the form of the documentation magical? Where should you keep it?
  33. 33. 33Handling the Termination
  34. 34. 34Termination Documents Termination Procedures Termination Decision Termination Communication Separation Agreements
  35. 35. 35Termination Procedures Documentation You may have some policies impacting your ability todiscipline or terminate. Check before you start creatingdocumentation. If you aren‟t, have good and well-documented reasons for the departure. Examples ofexisting documents that may impact your terminationprocess include:– Employment contract provisions– Progressive discipline policies– Grievance and decision review policies– HR/Legal oversight approval policies
  36. 36. 36Termination Decision Documentation Written before the termination decision is communicatedto the employee Explains the reason for the decision Provides enough history to understand and evaluate thedecision from a legitimate business reason perspective References and has attached backup documentation forthe decision In complicated or risky situations, should be written onlyafter discussions with counsel and at request of counselor in a communication to counsel to permit non-discoverable revisions
  37. 37. 37Termination CommunicationDocumentation Clearly communicates to the employee that heor she has been terminated, effective when, and– May include the reasons– Should never include false reasons– Should never include only some reasons when otherreasons are also present– In complicated or risky situations, should be writtenonly after discussions with counsel and at request ofcounsel or in a communication to counsel to permitnon-discoverable revisions
  38. 38. 38Common Mistakes
  39. 39. 39Common Mistakes in Disciplining Creating arguments that “employment at-will”was changed Vague communications of the expectations andconsequences going forward Inconsistent discipline for similar infractionsacross the company Inappropriately light discipline Bringing unrelated or irrelevant issues into thedocumentation
  40. 40. 40Common Mistakes in Terminating Terminating without having exhausted the ADA reasonableaccommodation process Termination for retaliatory reasons (known to the decisionmaker but not to HR) Overlooking procedural requirements Bringing unrelated or irrelevant issues into the documentation Sugar-coating or leaving out some reasons for termination Getting HR or counsel involved too late – after a bad decisionhas been made or bad documentation has been created
  41. 41. 41Avoiding Lawsuits
  42. 42. 42Separation Agreements What are they? Why have them? What consideration must the employergive in exchange for a release? What can be released?
  43. 43. 43Avoiding Lawsuits Avoid discrimination and retaliation Create an atmosphere of fairness Manage employee expectations - avoidsurprises Use severance payments to buy releasesof claims
  44. 44. 44Releases of Claims Don‟t pay severance without obtaining a release Make sure your release is well drafted, complies with thelaw, and protects you to the fullest extent possible Understand the requirements for releasing agediscrimination claims. Know what Age Discriminationreleases (employees 40 y.o. +):– Must use plain language– Must give consideration beyond anything employee isalready entitled to– Must advise employee to consult an attorney
  45. 45. 45Releases of Claims Don‟t pay severance without obtaining a release Make sure your release is well drafted, complieswith the law, and protects you to the fullestextent possible Understand and comply with the requirementsfor releasing age discrimination claims Get legal advice as soon as you know a grouptermination (reduction in force) is on the horizon
  46. 46. 46Age Discrimination Releases Age Discrimination releases (40 y.o. +):– Must use plain language– Must give consideration beyond anythingemployee is already entitled to– Must advise employee to consult an attorney
  47. 47. 47Age Discrimination Releases If the termination is of one person:– Must give him/her 21 days to consider therelease, and 7 days to revoke the agreement– The 7 day period cannot be shortened, evenby agreement
  48. 48. 48Age Discrimination Releases If the termination is of a group of people:– Must give the employees 45 days to considerthe release, and 7 days to revoke theiragreement– The 7 day period cannot be shortened, evenby agreement– Must include a disclosure containing specificadditional information about how the firingdecision was made and who was impacted
  49. 49. 49Age Discrimination Releases Group termination releases must provide:– Decisional unit information (who wasconsidered for termination)– Eligibility factors (parameters for selectingemployees for the termination)– Identification information (ages/titles of thoseterminated and not terminated)
  50. 50. 50 Christina M. Jepsondirect: 801.536.6820email: cjepson@parsonsbehle.comThank You