Documenting Discipline Shouldn’t Be Ignored by Employer

In an employment environment where risk management is absolutely vital, documenting employee discipline is a critical task.

Documenting Discipline Shouldn’t Be Ignored by Employer

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In an employment environment where risk management is absolutely vital, documenting employee discipline has become a critical task in protecting an organization. According to many legal experts, a systematic means of documentation is so important that lacking one substantially increases the likelihood of a company being on the wrong side of an expensive legal battle.

Although most states follow the Employment-At-Will doctrine — meaning either the company or the employee can terminate the employment relationship at any time, with or without cause, with or without notice — it is always beneficial to have clear, concise documentation of an employee’s successes and problems. Ensuring there is a sound process in place for documentation “not only assures that an employee is being treated fairly during counseling and termination procedures, but also is a definite benefit for performance reviews and when considering promotions and raises,” says Julie Donahue, an employment law attorney with Ogletree Deakins in Philadelphia. “It can also be tremendously beneficial in problematic unemployment situations and unfair discharge lawsuits.”

THE EMPLOYEE HANDBOOK

Establishing a set of well-drafted employee policies is an important precursor to thorough documentation practices. For employers, “the greatest benefit that an employee handbook can provide is the legal protections that can be secured by properly drafted and disseminated policies and procedures,” says Alisa Pittman Cleek, an employment law attorney with Elarbee Thompson in Atlanta. “From an employee perspective,” she adds “the employee handbook provides guidance, sets expectations, and provides information regarding policies and procedures that apply to the workplace.”

Employee handbooks should be written and periodically amended by an employment attorney who knows the law and knows how to draft the language to best protect a contractor. In essence, they should be viewed as an investment in the contractor’s best interests and an insurance policy against potential risk and liability.

“An employee handbook is the go-to reference source for just about any situation a company may face,” says Cassandra Carver, a human resources consultant with New York City-based Astron Solutions. “If there’s a policy in place, a manager can point to it and clearly document a violation or breech. You really want to avoid employees coming back to a manager and saying, ‘I didn’t know that we weren’t permitted to do that.’”

With a handbook solidly in place, documentation becomes far more substantiated. But it should not be one-sided or give the indication that there is any sort of agenda in place. “Initially, an employer should make a genuine effort to correct the problem and rehabilitate the employee,” Carver says. 

DOCUMENT EVERYTHING

Those in management will often think to document a matter when an issue has become substantial in nature. But this is not the right approach. “It’s best to err on the conservative side and document even seemingly minor concerns,” says Kevin Gallagher, a risk manager and auditor with Elite Risk and Insurance Consultants in New York City. “Big matters often start small, and it can be very helpful to demonstrate a pattern of behavior. You don’t want to be caught [in a situation] where an employee matter has escalated to a serious point and you haven’t documented the history as to how it got to that point.”

Many employers fail to keep any records, others fail to maintain records in a systematic and organized way, and still others make the mistake of documenting only the disciplinary action taken, purging documents related to the procedure to save on valuable space.

Another mistake employers make, Donahue says, is extending the concept of a paperless office and keeping only electronic versions of disciplinary records. “While electronic files have their uses and remain acceptable in many situations, courts may not accept all electronic records as evidence,” she says. “It is far easier to manipulate electronic records than paper records.”

The best approach when keeping documentation of employee discipline is to have proper paper documentation, Donahue advises, which details both the procedure and result of the disciplinary proceedings. Each employee may have a separate file, or each case may have a separate file, as appropriate.

One good practice is to provide detailed documentation that covers the following aspects:

  • The what, when, why, where, who, and how of the misconduct or misdemeanor.
  • Steps being taken to try and rectify the situation and/or rehabilitate the employee.
  • Customer complaints, complaints by other employees, evidence captured by camera and other records related to the issue.
  • How the misconduct was identified.
  • The initial response of the management. Include warning letters and details of support provided to the employee, such as counseling or training.
  • Details of any repeat offenses.
  • The letter to the employee stating the misconduct and asking the employee why action should not be taken for the misconduct.
  • The employee’s acknowledgement of the letter.
  • The employees reply, if any.
  • Signed minutes of the inquiry meeting, including details such as the people who conducted the proceedings, the methodology of the proceedings, the people interviewed, the materials examined and the final verdict.

The decision of the meeting, communicated to the employee.

The same records for the employee’s appeal, if any.

Make sure to date and time stamp all documents and get the signatures of all relevant parties, whenever appropriate. The documentation of disciplinary action should establish that the contractor has followed basic procedures, and adhered to all of the latest rules and regulations mandated in the company manual.

The actual size of a contractor should not bear relevance to whether or not these practices are put into place. “A court will typically hold a large organization to a higher standard than a very small outfit, but courts can also be unpredictable and risk management is not something to toy with,” Pittman Cleek says. “It really makes sense for any size organization with employees to have a handbook in place along with protocols for documentation.”



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