Is it a good idea to remove disciplinary warnings from an employee's file?

Dick Grote recommended in his best-selling book Discipline Without Punishment (AMACOM, 1995) that removing discipline from an employee's file after a year has positive, motivational effect on employee morale. After all, he reasons, all employees make mistakes and errors in judgment. If disciplinary warnings are the appropriate company response to such indiscretions, then companies can also minimize the sting of disciplinary intervention by removing those documents after some predetermined time (such as a year), provided the employee has remained free of any infractions.

Such an action is purely voluntary on your company's part. There's no law that mandates that employers in any state must remove such records. You'll typically see this concept of record removal in the collective bargaining process as unions argue that their members are entitled to such a benefit. Nonunion employers are under no obligation to provide this benefit.

You've got to balance the motivational benefit of allowing employees to ''clean'' their records with the downside of liability should that behavior repeat itself. Certain workplace issues have a tendency to repeat themselves over time and to become ''systemic.'' For example, sexual harassment, discrimination, and incidents of workplace violence should never be removed from an employee's personnel file. The law has a long memory, and your deliberate erasure of historical records that codify prejudice or intolerance could later be interpreted as irresponsible or incriminating. Therefore, in order to wipe out institutional discrimination and to protect the safety of all your workers, discard this one-year removal clause for infractions related to harassment, discrimination, or violence.

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What about other kinds of infractions? Would the removal of written warnings after one year free from job performance problems benefit your company? Ultimately, that's up to you to decide. Think of it this way, however. If one of your employees received a glowing letter of recommendation from a customer, and that letter was placed in the individual's personnel file, you probably wouldn't remove it after a year. In essence, it becomes a historical record of what occurred at some point in time. If you were later to discipline that individual for substandard customer service, the progressive disciplinary document would supersede that historical letter of recommendation.

Similarly, if one of your employees is written up for substandard customer service but then really turns her performance around, you have the right to add another document to the file recognizing this new achievement. An example of this kind of recognition can be found in Appendix N.

Is there a legal downside to such positive follow-up letters? There could be. By formally documenting improvement and then shortly thereafter terminating the employee for substandard job performance, you may run the risk of losing a wrongful termination claim. For example, a plaintiff attorney representing the ex-employee might argue that your documents were inconsistent and ambiguous. ''After all, the follow-up letter neutralized the prior disciplinary warning, and then you terminated my client anyway goes the typical line of reasoning.

Still, good management is all about risk management—not about risk avoidance. You can t manage by fear of lawsuits. Instead, you have to find that fine balance between protecting the company and motivating your staff. Before you implement such a policy, discuss your options with outside counsel. Your decision s motivational impact may help withstand union organizing campaigns and lower turnover. However, depending on the state in which your company sits, such a policy may have more limitations from a liability standpoint than you re willing to assume.

 
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