What are the two biggest mistakes that employers make when documenting employee discipline as part of a progressive disciplinary system?
First, many employers give themselves extra hurdles to jump through by documenting “state of mind” offenses. In an attempt to demonstrate an employee’s carelessness or lack of discretion, employers will use qualifying terms like willfully, deliberately, recklessly, purposely, and intentionally.
This may help them communicate the depth of their dissatisfaction with the employee’s substandard performance; however, it may create an additional burden of proof if they are forced to substantiate their contentions. Therefore, you should avoid mental element qualifiers as much as possible so that you don’t have to prove an employee’s state of mind at the time a particular offense was committed.
Second, many employers fail to realize that disciplinary documentation is legally discoverable and may be used against them by a current or former employee. For example, if you state, “Your failure to properly . . . has compromised an entire pool of loans,” then you are codifying the damage done to the banking institution. That disciplinary document, in the wrong hands, could very easily become a leveraging point to substantiate a plaintiff’s claim for damages.
This becomes even more important in sexual harassment claims. Of course, if an employee engages in activities that, in your opinion, create a hostile or offensive working environment, then you’ll want to impress upon him the seriousness of his actions. However, if you state, “You have created a hostile and offensive working environment,” that discoverable document could be used by a plaintiff’s attorney as clear evidence that harassment did indeed occur.
To remedy these potential pitfalls, you’re best off stating, “Your failure to properly . . . could have compromised an entire pool of loans” or “Your actions suggest that a hostile and offensive working environment could have been created.” This way, the responsible disciplinary action that you took won’t as easily be misinterpreted as confirmation that wrongdoing actually occurred. Be careful not to let your own documentation incriminate you.
Excerpted, with permission of the publisher, from 101 Sample Write-Ups for Documenting Employee Performance Problems: A Guide to Progressive Discipline & Termination (Third Edition, 2017) by Paul Falcone. Copyright 2017, Paul Falcone. Published by AMACOM.
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