What're the three biggest mistakes that employers make when documenting discipline?

Employers commit three basic errors when documenting discipline. They:

- Fail to document their affirmative efforts at helping to rehabilitate their workers.

- Document ''state of mind'' offenses.

- Codify the damage done to the organization.

Let's look at each of these categories briefly. First, remember that employees and juries expect companies to do more than simply point out problems. Companies must act responsibly by reaching out to disenfranchised employees and welcoming them back into the fold. Such a goodwill outreach may take on the form of one-on-one-training or outside seminars or workshops, or it may simply mean providing an employee with a copy of a policy so that the individual clearly understands what's expected. Be sure to document whatever steps you take to help the employee improve the situation at hand.

Second, be sure to avoid what are known as ''state of mind offenses. Sometimes managers try to really impress upon employees in writing how bad their actions were. Consequently, they include terms in the written warning such as ''willfully, ''purposely, ''deliberately, ''intentionally, or ''maliciously. Such mental element qualifiers certainly appear to strengthen the point that the manager is trying to make, but they escalate the written warning so that it may appear to become a personal attack.

In addition, plaintiff attorneys suing for wrongful termination may now hold you to a higher standard when they ask you questions like, ''How did you know my client did that purposely? Would it have made a difference in your decision to terminate her had she not acted purposely? Therefore, avoid these words whenever possible when documenting discipline.

Third, always bear in mind that disciplinary documents are discoverable. That means that a plaintiff attorney can subpoena your written warnings and use them against your company. Therefore, avoid stating that an employee ''sexually harassed a coworker. Sexual harassment, as a term of the trade, is a legal conclusion. Instead, describe the behavior so that a court can compare the documented behavior to the company's definition of sexual harassment. Otherwise it will be a matter of determining damages owed, not whether sexual harassment took place.

Similarly, don t state: ''Your failure to follow standard operating procedure has jeopardized an entire pool of loans. Should a class-action lawsuit later unfold down the road, that one disciplinary document may be used as evidence that it was an employee s fault that a pool of loans was not sold in the secondary mortgage market.

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How should you document incidents of inappropriate conduct or substandard performance without codifying the damage done to your company? Simply use language that is less concrete and more fluid in tone. Sample language of a written warning for sexual harassment cases can be found in Appendix L.

In the case of the improperly pooled mortgage loans, you might write: ''Your failure to follow standard operating procedure may have jeopardized an entire pool of loans.'' Again, avoid absolutes and codifying specific damage done to your company.

What are letters of clarification?

Many employers make the mistake of looking at corrective action as a black-and-white choice. They either do nothing at all, or they prepare very formal disciplinary documents that may leave an employee feeling alienated and threatened. However, there is a middle ground.

A letter of clarification is an alternative response that allows the supervisor to formally acknowledge her concerns in writing without inflicting the shame associated with formal warnings (e.g., ''failure to provide immediate and sustained improvement may result in further disciplinary action up to and including termination ).

On one hand, letters of clarification are presented to the employee in written format and require the employee s signature. Logically, when things are written down, they are perceived more seriously. In addition, when employees sign their names to documents related to their performance or conduct, they develop a healthy sense of paranoia that those documents may be used later down the line to establish some pattern in their actions.

On the other hand, letters of clarification specifically state that the document isn't a disciplinary warning. As such, employees don t walk away from your meeting feeling beaten up for having been written up. Instead, they sense that they ve had a private meeting with management to discuss management s perceptions about how they can improve their performance. That sense of respect and dignity helps employees assume responsibility for the situation.

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Your opening should express your concerns about the individual s performance, conduct, or excessive absenteeism. It also clarifies that the letter is not a disciplinary document, merely a formal acknowledgment that the individual s performance has suffered. A sample clarification letter can be found in Appendix R.

A final caveat: Letters of clarification work best for long-term employees who should be accorded ample workplace due process because of their tenure in your organization. The clarification letter could later be portrayed as management s attempt to solve the performance problem without having to resort to formal discipline. On the other hand, you shouldn't always hand out clarification letters as precursors to formal discipline. Union representatives may argue that you ll have created a precedent and past practice if you use such documents for certain employees but not for all. Therefore, use these tools carefully, and reserve them primarily for your longer-term employees.

 
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