October 14, 2016
Issuing corrective action is always a manager’s least favorite thing to do. After all, no one wants to sit down with a team member and issue a formal written warning outlining the employee’s substandard job performance or inappropriate workplace conduct. In reality, most managers typically put off this confrontational task for as long as possible.
No, corrective action isn’t a death sentence, and in its purest form is meant to be an alert that an employee’s performance isn’t meeting company expectations so that the individual can turn things around and get back on the right track. But what if an employee refuses to sign a written warning or a final written warning? What are your rights and alternatives in terms of holding the individual accountable for her performance turnaround? “The good news is that you’ve got options,” according to Jacqueline Cookerly Aguilara, partner in the Los Angeles office of Morgan, Lewis & Bockius, LLP. “Having the employee sign the piece of paper is important as an evidentiary matter in terms of according workplace due process, but it’s more important that the individual assume responsibility for her performance or behavior. That’s where the true fix occurs.”
Invite the employee to write a rebuttal
Your progressive discipline template should invite employees to participate in the turnaround by making themselves part of the solution. Consider including language in your corrective action template that reads as follows:
“I recognize that you may have your own ideas and suggestions for improving the situation at hand. Therefore, I encourage you to provide your own performance improvement plan input and/or rebuttal below or on a separate sheet of paper if you wish.”
If an employee disagrees with the facts contained in the write-up, the rebuttal allows the individual to draft his version of the events and document his version of reality.
Further, as a matter of practice, the company shouldn’t “rebut the rebuttal.” The employee gets the last word, and unless material facts are included that the company is bound to address for the sake of record clarity, the employee should have the right to respectfully disagree with the company’s actions. “All in all, however, the rebuttal does the same thing as signing the document in the eyes of the law: It provides acknowledgment that the employee received the document and will be held to its terms and conditions,” according to Cookerly Aguilara.
Call a witness into the room
When all else fails and an employee absolutely refuses to sign the document or provide a rebuttal, call another member of management/human resources into the room to witness that the employee received it. The management witness doesn’t need to be brought into the details of the disagreement or otherwise be inserted into the argument. That manager’s role is simply to witness that the document was issued, should the employee later claim that she never received it. The manager-witness can simply document on the written warning below the employee signature line: “Employee Sarah Doe was issued this corrective action in my presence and refused to sign it.” As such, the evidentiary requirement is met, and the company can move forward with further discipline at a future date if required.
Progressive discipline is a necessary part of management. Finding ways to involve your employees in their own performance improvement turnarounds and encouraging their formal input is a smart way to make a tense situation more cooperative and palatable. Knowing how and when to include an objective manager-witness from an evidentiary standpoint is an important legal tactic when both sides can’t seem to see eye to eye.