“To have a boom, you have to keep your nose clean legally…”1
—L. Ron Hubbard
Firing an employee who does not expect it is often the impetus for that employee filing a discrimination lawsuit against his or her former employer. When the employee does not see it coming, he or she can think the termination is discriminatory. Clear and blunt written communication
with employees to communicate expectations and to document an employee’s failure to perform as required during all phases of employment can avoid this result. As an added benefit, creating a paper trail can provide an employer with invaluable evidence to support a defense against a discrimination claim. It just may also cure the situation and improve the employee’s performance.
The following are 10 steps employers can take (that your employment lawyer will love to see) to create a paper trail with regard to your employees:
1. Have written job descriptions that establish expectations for each specific job, signed by the employee.
2. Have written employee policies that establish expectations for all employees, with written acknowledgements of receipt.
3. Do not allow poor performance, behavior, attitude, etc., to continue without comment. Address it when observed. Failing to do so implies acceptance. If formal discipline is not yet warranted, keep a log of observations and conversations. After a number of conversations, be sure a note is written to the employee’s personnel file.
4. Coach employees to improve poor performance, behavior, attitude, etc., and write a file memo to document what transpired.
5. Provide employee training and/or coaching where appropriate. Keep training completion certificates in the employees’ personnel files.
6. Document attendance issues. Keep written notes/e-mails regarding absences.
7. When verbal warnings are given, draft a file memo to document what transpired. Creating documentation of “verbal” warnings is not only permissible, but recommended.
8. Give written warnings when warranted (copy to the personnel file, copy to the employee). Have the employee sign the file copy of the warning or write “refused to sign.” Create a separate file memo to document the conversation during which the warning was presented.
9. When warranted, insist employees sign written acknowledgements of policies received, etc.
10. Provide accurate annual performance appraisals, and more frequent appraisals if warranted. Do not give inappropriate “satisfactory” ratings when the performance is not acceptable. Avoid the temptation to inflate a rating.
With the above in place, the employee’s personnel file should document:
– communication of employee expectations;
– employee ability/inability to meet expectations;
– coachings/counselings/discipline of the employee.
To ensure such procedures are properly in place, get your managers and supervisors trained on proper discipline procedures and paper trail creation by employment law experts. A proper paper trail can make the difference between a protracted and expensive employment discrimination lawsuit (or a hefty settlement) and a speedy result. Thus, the time, energy and effort spent establishing and enforcing documentation procedures is well invested.
1. Article of 1 September, 1965