Put It In Writing: Documenting Employee Discipline

In an increasingly competitive business environment, finding time to dot the i’s and cross the t’s can be a challenge. When handling workforce disciplinary matters, this often means failure to document a particular infraction or warning. At the time, the extra step may seem unnecessary, especially if you have communicated a clear verbal warning to the employee. Problems arise down the road, however, when you need that historic record to support subsequent disciplinary action.

I recently handled two different hearings before administrative judges who were tasked with deciding whether former employees should receive unemployment benefits. My clients (two different employers) had terminated the employees for recurring disciplinary problems: one for insubordination and one for a history of tardiness. In each case, my client had given a series of warnings, and there was clear evidence that the issues had been reviewed with the problem employees. But because the employer had not provided an explicit, written warning, the judge in each case determined that the employee had not engaged in intentional misconduct such that he or she should expect termination. As a result, the judge found the employee entitled to unemployment benefits.

The cynics among you may question whether the state unemployment insurance administration ever rules against extending benefits. “Why bother to document since we’ll lose that contest anyway?” Failing to d
ocument discipline can come back to haunt employers in judicial proceedings with more at stake than unemployment benefits.

When former employees sue alleging workplace discrimination, an employer’s first line of defense is to demonstrate a legitimate, non-discriminatory reason for the adverse employment action, be it termination, failure to promote, or whatever. The burden then shifts to the employee to show that the reason offered by the employer is a cover-up or “pretext.” Nothing helps the plaintiff more than an employee file that is silent on — or, worse, inconsistent with — the reasons for the adverse action. Conversely, a clearly documented history of warnings and discipline leading up to the challenged conduct makes the employer’s explanation all the more plausible.

The next time you meet with an employee to discuss a problem, take two additional minutes to document the incident. Clearly describe the problem and the required improvement. If you intend it to be a “final warning,” say so. Give a copy to the employee, and keep a copy in the employee file.

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