101 Sample Write-Ups for Documenting Employee Performance Problems: A Guide to Progressive Discipline & Termination

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Book Description There’s no escaping problem employees. But with 101 prewritten disciplinary write-ups at a manager’s fingertips, there is a way to escape the headaches, anxiety, and potential legal trouble of performance review or counseling sessions. Completely updated and covering the latest developments in employment law, the second edition of 101 Sample Write-Ups for Documenting Employee Performance Problems explains the disciplinary process from beginning to end and provides ready-to-use model documents—in print and on disk—that eliminate the stress and second-guessing about what to do and say. Expertly written, the write-ups cover every kind of problem—substandard work quality, absenteeism, insubordination, e-mail misuse, sexual harassment,drug or alcohol abuse, and more. Readers will also find new information on laying the ground work for a tidy dismissal; tying progressive discipline to annual performance reviews; formally addressing intermittent FMLA abuse; ways to avoid drafting documentation that could later be used against their company; and much more. There is perhaps no more dreaded managerial task than communicating with an employee about a disciplinary problem, but this one-of-a-kind guide helps managers handle any scenario fairly, constructively, and, most importantly—legally. Read more From the Back Cover There is perhaps no more dreaded managerial task than ­communicating with an employee about a disciplinary problem. But when performance problems become apparent, you can’t just ignore them. You need to deal with them head-on. Not sure of the best way to handle a particular situation? Turn to 101 Sample Write-Ups for Documenting Employee Performance Problems: A Guide to Progressive Discipline & Termination. Now completely revised and updated, the book has been the trusted resource for managers for more than a decade. Expertly written, the guidebook covers dozens of problems likely to occur in the workplace, from substandard work quality, absenteeism, and poor attitude to sexual harassment, insubordination, and more. Among the new write-ups found in this edition of the highly popular reference guide are how to deal with such problems as: • Politically incorrect behavior • Lack of leadership or trust • Failure to communicate upward and/or follow through • Lack of teamwork • Use of Internet pornography • Managerial misconduct and retaliation • Failure to disclose a conflict of interest or personal relationship • Violation of intellectual property rights This completely updated edition also includes an appendix on SOX requirements and samples of how to deal with intermittent FMLA abuse. Because writing someone up doesn’t always result in a correction of the problem at hand, readers will also find creative alternatives to formal disciplinary warnings that will help turn around those flying “just below the radar.” There are 18 sample termination letters included. Also inside: advice for tying progressive discipline to annual performance reviews; ways to avoid drafting documentation that could later be used against your company; summary dismissals; and much more. The book isn’t merely a reference, but a resource that managers can turn to any time they need to generate a corrective action notice. All 101 samples in the book are easily accessible for viewing via the companion CD-ROM and can be downloaded and customized with minimal effort. Simply put, you’ll no longer have to guess at what verbiage you should include in a write-up. This one-of-a-kind guide helps managers handle any scenario fairly, constructively, and—most important—legally. Paul Falcone is Vice President of Employee Relations at Time Warner Cable in Los Angeles and was formerly Vice President of Human Resources at Nickelodeon. He is the author of 2600 Phrases for Effective Performance Reviews, 101 Tough Conversations to Have with Employees, 96 Great Interview Questions to Ask Before You Hire, The Hiring and Firing Question and Answer Book, and Productive Performance Appraisals. Falcone is also a longtime contributor to HR Magazine and a nationally recognized speaker on hiring and performance management. Read more About the Author Paul Falcone is a leadership & human resources consultant in Southern California and has held senior-level HR executive positions with Nickelodeon, Paramount Pictures, and Time Warner. He is the author of several best-selling books, including 2600 Phrases for Effective Performance Reviews , 2600 Phrases for Setting Effective Performance Goals, 101 Sample Write-Ups for Documenting Employee Performance Problems, 101 Tough Conversations to Have with Employees, and 96 Great Interview Questions to Ask Before You Hire, and. Paul's consulting practice focuses on effective hiring, performance management, leadership development, and strengthening the muscle of a company’s frontline leadership team. He is a long-term contributor to HR Magazine. Visit him at www.PaulFalconeHR.com. Read more Excerpt. © Reprinted by permission. All rights reserved. Chapter 1 Progressive Discipline and Its Legal Considerations     Documenting poor performance and progressive discipline is as much an art as it is a science. Unfortunately, most human resources professionals and line managers don’t have the time to study the nuances of progressive discipline, workplace due process, summary dismissal, discharge for cause, and the like. Even when that theory is mastered, however, there remains the challenge of incorporating all those ideas into a written memo that adequately documents subpar job performance or workplace conduct. So it’s not surprising that many managers avoid writing up employees like the plague. And without a template to follow and samples to emulate, it’s no wonder that many managers create memos that cannot withstand legal scrutiny. If the objective of any disciplinary system is to create and maintain a productive and responsive workforce, then disciplinary actions, when they occur, should focus on rehabilitating employees by deterring them from repeating past problem behaviors. It is simply a fact of the modern workplace that you as a manager are charged with this responsibility. Terminated employees who are successful at winning wrongful discharge claims, on the other hand, typically can prove that they were denied “due process”—what we call progressive discipline. They successfully argue, with the help of their attorneys, that your company breached its de facto obligation of “good faith and fair dealing” in managing its employees and in following its own policies. So if you’ve ever scratched your head about losing a case to an employee who flagrantly disregarded work responsibilities, it’s probably because an arbitrator concluded that due process was denied. In other words, if the “step formula” outlined in your company’s progressive discipline policy is violated, or if you fail to properly notify an employee that her job is in jeopardy, you may end up on the losing end of a wrongful termination suit. Ditto if you dole out punishment (i.e., termination) that doesn’t appear to fit the offense. In such cases, arbitrators will conclude that the misuse of your managerial discretion warrants the substitution of their judgment for yours in the handling of a specific worker. Frequently, that results in a lesser penalty (such as reinstatement plus a written warning instead of termination). But what about your rights? Shouldn’t workers be held accountable for their actions? Don’t you retain any discretion in determining who should play on your team? After all, whose company is it? Well, don’t despair. The program outlined in this book is aimed at giving those rights back to you. With the help of this system, here is how discharge hearings should play out in the future: An arbitrator asks a former employee/plaintiff in a wrongful discharge action, “I see that your former company offered you an opportunity to take part in an EAP program. Did you contact the EAP?” The former employee’s flat response is, “No.” The arbitrator then asks, “I see that you were encouraged to fill out a section of this write-up regarding your own performance improvement. It’s blank, though. Why is that?” The apologetic response is, “Well, I guess I didn’t have time.” The arbitrator continues: “I see. Hmmm. Your company paid to send you to a one-day off-site training program on conflict resolution in the workplace. Did you attend that workshop?” The employee responds, “Yes, I did.” Finally, the arbitrator closes: “So you attended the workshop that was paid for. Yet you did little else to invest in your own personal improvement. And you signed a document showing that you agreed that if you didn’t meet the conditions of the agreement, you would resign or be terminated regardless of the reasons for your failure. . . . I see no merit in your argument that you were denied due process or that your organization failed to make reasonable attempts to rehabilitate you. This case is dismissed.” You’ll immediately notice how the burden was shifted to the employee in terms of proving that he made a good-faith effort to become a better worker. To make this fundamental paradigm shift occur, however, you have to provide the employee with resources he can use to improve himself: coaching and commitment, training, and material resources. And that’s a win for both sides, since you, the employer, focus on helping your workers and they, in turn, are charged with accepting your invitations to improve. It all begins with due process—your efforts to ensure that the employee understands what the problem is, what she needs to do correct the problem, what will happen if she doesn’t, and how much time she has to demonstrate improvement. The Elements of Due Process A legal theory called the “job as property doctrine” states that employment is a fundamental right of American workers and that the loss of employment has such a serious impact on a person’s life that individuals should not lose their jobs without the protection of due process, as afforded under the Fourteenth Amendment to the Constitution.1 Affording due process means recognizing the employee’s right to be informed of unsatisfactory performance and to have a chance to defend himself and improve before an adverse employment action (such as discharge) is taken. This “property right” protection places on management an obligation to deal in good faith with employees and to take corrective action measures based on just cause (i.e., good reason). This just cause requirement, in turn, mandates that businesses take corrective action measures only for clear, compelling, and justifiable reasons. But what exactly are the elements of due process? First, the employee must understand your expectations and the consequences of failing to meet your performance standards. If a write-up merely documents a performance problem without pointing to the consequences of failure to improve, the write-up will lack the “teeth” necessary to meet due process guidelines. Second, you must be consistent in your application of your own rules. Workers have the right to consistent and predictable employer responses when a rule is violated. In other words, problems cannot be corrected on an ad hoc basis without the employer’s being perceived as arbitrary, unreasonable, or even discriminatory. Bear in mind as well that, generally speaking, practice trumps policy. In other words, regardless of what your handbook or policy and procedure manual says, your past practices will be scrutinized for consistency. In addition, failure to follow through on threatened consequences damages the credibility of your disciplinary system and sets an unintended precedent: If Employee A, for example, was forgiven for making certain mistakes, Employees B through Z may arguably have to be forgiven for making those same or similar errors. Third, the discipline must be appropriate for the offense. Occasional poor performance or a minor transgression (known as a de minimis infraction) is certainly actionable but probably not cause for termination. An employee’s performance track record and prior disciplinary history must certainly be taken into account. Fourth, the employee should be given an opportunity to respond. Administering discipline without allowing employees to give their side of the story is begging for trouble. Unfortunately, of all the elements of due process that should be incorporated into any write-up blueprint, this self-defense principle is the one that is most often lacking. Fifth, you need to allow the employee a reasonable period of time to improve her performance. Otherwise, your disciplinary actions will appear to be an artificial excuse to get the employee out of the organization. We’ll talk more about acceptable probationary time frames in Chapter 4. Read more