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

Falcone, Paul

Brossura

ISBN 10: 0814438555 ISBN 13: 9780814438558

Casa editrice: HarperCollins Leadership, 2018

Riassunto

Whether you’re addressing an initial infraction or handling termination-worthy transgressions, you need to be 100 percent confident that every employee encounter is clear, fair, and most importantly, legal.

Thankfully, HR expert Paul Falcone has provided this wide-ranging resource that explains in detail the disciplinary process and provides ready-to-use documents that eliminate stress and second-guessing about what to do and say.

In 101 Sample Write-Ups for Documenting Employee Performance Problems, Falcone includes expertly crafted, easily customizable write-ups that address:

• sexual harassment,
• absenteeism,
• insubordination,
• drug or alcohol abuse,
• substandard work,
• email and phone misuse,
• teamwork issues,
• managerial misconduct,
• confidentiality breaches,
• social media abuse, and more!

With each sample document also including a performance improvement plan, outcomes and consequences, and a section of employee rebuttal, it’s easy to see why this guide makes life for managers and HR personnel significantly easier when it comes to addressing employee performance issues.

Su questo libro

Informazioni sull?autore

Paul Falcone is an HR executive who has held senior-level positions with Paramount Pictures, Nickelodeon, and Time Warner. A long-time contributor to HR Magazine, he is the author of bestselling management books including 2600 Phrases for Effective Performance Reviews.

Dalla quarta di copertina

Having to discipline a problem employee is never easy. But when a worker’s words or actions hurt your company or a member of your team, you need to address the situation quickly and effectively. A one-on-one meeting and an official write-up is often a necessary part of the job. But it doesn’t have to be a manager’s worst nightmare.

If you ever find yourself in the uncomfortable but unavoidable position of having to write up an employee for any reason whatsoever, 101 Sample Write-Ups for Documenting Employee Performance Problems has exactly what you need. This invaluable handbook includes templates for verbal, written, and final written warnings that cover virtually every serious workplace infraction—from frequent lateness and excessive absenteeism to safety violations, lack of production, and insubordination. There are write-ups that address sexual harassment, violence, and other inappropriate behaviors, and each sample demonstrates the proper guidelines to follow to help a disciplined worker get back on track and become more actively involved in his or her own development. In a worst-case scenario, the sample write-ups provided will help satisfy due process requirements and minimize legal challenges if an employee’s termination becomes necessary.

For nearly two decades, Paul Falcone’s bestselling handbook has been an invaluable resource for business owners, HR managers, department heads, and first-line supervisors. This newly revised 3rd edition reflects the latest developments in employment law and features 20 additional write-ups addressing the misuse of social media, cyberbullying, medical marijuana, FMLA abuse, and other contemporary issues that may affect the workplace. It also includes sample separation notices—if that option becomes unavoidable—covering a wide variety of circumstances.

These write-up samples will make your work life easier, save you valuable time, and preserve your sanity by providing blueprints to fit most disciplinary situations. Here are the tools that will help you:

• Enhance employee performance and accountability

• Avoid legal problems inherent in the termination arena

• Protect your company and its workers

• Address minor problems before they become

The ready-to-use documents in this one-of-a-kind guide are clearly written, expertly crafted, and can be easily customized to apply to performance issues in a wide range of professions, white collar and blue collar alike. Whether you’re supervising a large or a small office, a retail business, a bank, a medical facility, a high-tech start-up, or a factory floor, 101 Sample Write-Ups can be a lifesaver—and a job-saver—no matter what workforce problem pops up.

Paul Falcone is an HR executive who has held senior-level leadership positions with Paramount Pictures, Nickelodeon, and City of Hope. A long-time contributor to HR Magazine, he is the author of multiple bestselling management books, including 2600 Phrases for Effective Performance Reviews.

Estratto. © Ristampato con autorizzazione. Tutti i diritti riservati.

101 Sample Write-Ups for Documenting Employee Performance Problems

A Guide to Progressive Discipline & Termination

By Paul Falcone

AMACOM

Copyright © 2017 Paul Falcone
All rights reserved.

ISBN: 978-0-8144-3855-8

Contents

Introduction, 1, 
Part I: Mastering the Write-Up Tool, 5, 
Part II: Disciplining the Probationary Employee, 83, 
Part III: Policy and Procedure Violations, 113, 
Part IV: Performance Transgressions, 175, 
Part V: Behavior and Conduct Infractions, 287, 
Part VI: Absenteeism and Tardiness, 375, 
Part VII: Termination Notices, 427, 
Index, 455, 
Selected Additional Titles from the Society for Human Resources Management (SHRM), 461, 
About the Author, 
Free Sample Chapter from 75 Ways for Managers to Hire, Develop, and Keep Great Employees by Paul Falcone, 
Other Best-Selling books by Paul Falcone, 
About Amacom, 

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 also 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, then 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 may 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's 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. Hmm. 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 later codified under the Fourteenth Amendment to the Constitution. 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've got to 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 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 in any write-up blueprint, this self-defense principle is the one that's 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.

Several other rules of thumb are important to bear in mind as well when dealing with workplace due process:

* As an employer, you have the right to change your policies at any time. Simply give your employees advance notice of the change, along with its effective date, so that all workers can ready themselves to meet your newly defined expectations.

* Infractions need not be treated identically but should be treated consistently. For example, occasional versus habitual tardiness will typically invoke a different response from the company. In other words, you're not precluded from disciplining Susan who reports to work late on a regular basis just because you didn't discipline Fred who came in late one day last week. Likewise, sleeping on the job can be a significant infraction, but it's certainly less of an issue for a secretary (who may receive a written warning for a first offense) than for a night shift nurse (whose first offense results in a final written warning) or for an anesthesiologist (who is terminated for falling asleep during a medical procedure).

* The final incident plays a very significant role in determining how to best respond to any employee infraction: A clean and compelling final incident, in breach of previous documented warnings, makes for a much safer termination should you company later be challenged. Therefore, look especially to the nature of the final incident when considering termination.

The Traditional Progressive Discipline Paradigm

The traditional paradigm is used to prove, via documentation, that you made a good-faith effort to lead the employee down the right path. Your affirmative efforts to improve your employee's performance must have been willfully rebuffed despite repeated warnings so that you, as a reasonable employer, were left with no choice other than termination. Keep in mind that you may be required to demonstrate that the discipline was meted out in a fair manner that was consistent with your own policies so that any worker could reasonably expect to be terminated under similar circumstances.

Repeated Violations Trigger Disciplinary Progression

But how exactly does progressive discipline progress? Usually the impetus that moves the process from one stage to the next is a repeated violation of the same rule or type of rule (for example, repeated tardiness or unexcused absence). In essence, there must be a link or nexus between events in order to move to the next stage. Without an interrelationship between events, you will end up with a series of independent verbal warnings rather than a progression from a verbal to a written to a final written warning.

For example, an employee who violates your organization's attendance policy and one week later fails to meet a deadline may receive two separate verbal warnings for independent and unrelated transgressions. On the other hand, an employee who violates your company's attendance policy and then develops a tardiness problem will indeed progress through the discipline system because both transgressions are intrinsically connected: Unauthorized absence and tardiness both have a negative effect on the work flow of your office.

It is by no means uncommon to have an employee on separate paths of discipline. A shipping clerk who is already on final written warning for insubordination shouldn't necessarily be terminated if a tardiness problem begins. Tardiness, an event unrelated to insubordination, would not typically be used as the proverbial "straw that breaks the camel's back" to justify termination. That's because there is no nexus or interrelationship between the events: Tardiness interferes with work flow, whereas insubordination relates to individual behavior and conduct — a separate business issue altogether.

On the other hand, because insubordination is a conduct infraction, any other behavior or conduct infractions during the active period of the write-up may indeed result in dismissal. For example, if this shipping clerk on final written warning for insubordination suddenly engages in antagonistic behavior toward his coworkers, insults a customer, or refuses to follow a supervisor's instructions, then a discharge determination could be warranted (barring any significant mitigating circumstances, of course).

Summary Discharges

With all this emphasis on progressive discipline, whatever happened to your right to fire someone on the spot? Well, it's still there: You can fire anyone at any time. However, you may have difficulty defending your actions in a wrongful termination claim. If you've denied an employee due process, the technical merits of your arguments may be largely ignored.

On the other hand, you don't have to offer progressive discipline to someone who breaks the law. Progressive discipline is an employee benefit. If an employee engages in illegal activity or other egregious conduct (such as gross insubordination, gross negligence, theft, embezzlement, time card fraud, or drug use on company premises), you've probably got a clear shot at a quick and defensible termination (known as a summary dismissal).

To be on the safe side, though, speak with a labor attorney to fully explore the ramifications of such a dismissal. It's always worth getting a professional legal opinion to ensure that you haven't overlooked anything. If you need to buy yourself some extra time, you can always place the worker on investigatory leave with pay pending further review and a final decision.

Employment at Will

Of course, when it comes to summarily discharging employees, that will also be influenced by the employment status of your workers. If they are hired at will, you will have more leeway in determining whether to retain or terminate. Employment-at-will status is employment that does not provide an employee with job security, since the person can be fired on a moment's notice with or without cause. The employment-at-will relationship is created when an employee agrees to work for an employer for an unspecified period of time. It holds that an employer can terminate a worker at any time for any legitimate reason or for no reason at all. Likewise, the employee may leave the organization at any time, with or without notice.

On the other hand, the rule is littered with statutory exceptions. That means that you cannot terminate workers if the discharge infringes upon a protected right or goes against public policy. Specifically, there are five exceptions to the employment-at-will doctrine:

1. Employment contracts. If a contract exists, you must adhere to its terms and conditions, including notice requirements, or else you breach the contract. When an employment contract covers a fixed period of time (for example, three years) and is silent concerning grounds for terminating the contract, courts in many states have held that employers have an implied obligation to discharge only for just cause.

2. Statutory considerations. Dismissals are illegal if they are based on age, sex, national origin, religion, union membership, or any other category established in Title VII of the 1964 Civil Rights Act or other legislation. Discrimination is consequently one of the exceptions to the employment-at-will rule, and charges may arise any time you fire someone in a protected class.

3. Public policy exceptions. You cannot terminate an employee for filing a worker's compensation claim, for whistle-blowing, for engaging in group activities that protest unsafe work conditions, or for refusing to commit an unlawful act on the employer's behalf.

4. Implied covenants of good faith and fair dealing. You are prohibited from discharging long-term employees just before they are due to receive anticipated financial benefits.

5. Implied contract exceptions. You may be bound by promises published in your employee handbook or oral promises made at the hiring interview requiring just cause to terminate.

Because of these limitations, you must attempt to protect the at-will employment status at all costs.

Employment-at-will language is typically found at only three critical junctures in the employer-employee relationship: (1) the employment application, (2) the offer letter, and (3) the employee handbook. The at-will language certainly belongs there, but numerous court cases have found that if a long-term employee hasn't seen an application or offer letter since the date of hire ten or twenty years ago, then she may not necessarily be subject to an at-will employment relationship. Courts have held that it has simply been too long since that message was communicated to the employee. Therefore, communicating your company's employment-at-will policy during the disciplinary process helps protect that policy.

Does employment at will fly in the face of progressive discipline and due process? After all, if you have to take employees through a series of disciplinary actions before you can terminate for cause, does that naturally erode your ability to terminate at whim? Well, the two concepts are not mutually exclusive; rather, they are among the complicated, and oftentimes contradictory, issues that make up employment law today. By making the at-will nature of employment known expressly (i.e., in writing), you should be better able to successfully argue that an employee did not have a reasonable expectation that discharge could be only for cause.

(Continues...)

Excerpted from 101 Sample Write-Ups for Documenting Employee Performance Problems by Paul Falcone. Copyright © 2017 Paul Falcone. Excerpted by permission of AMACOM.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Dettagli dell'edizione

• Editore: HarperCollins Leadership
• Data di pubblicazione: 2018
• Lingua: Inglese
• ISBN 10: 0814438555
• ISBN 13: 9780814438558
• Rilegatura: Copertina flessibile
• Numero edizione: 3
• Numero di pagine: 478
• Contatto del produttore: non disponibile
• Persona responsabile: Simone Casetta; 0039 275422215; casetta@mondadori.it; ; Via Mondadori 1,; Segrate Milano; 20090; Italia