Subscribe To Us

Follow Us on Facebook

HR Handled Right

Purchase Dr Joni Johnston's eBook "HR Handled Right: Dealing with Dress Code Nightmares without Getting Sued" for only


employee discipline

Managers often fail to utilize one of their best weapons against discipline-related lawsuits – the manager’s unofficial employee file. There are many reasons this happens – the matter seems trivial, the conversation was informal, or the manager is busy. Regardless, a failure to create a paper trail of significant interactions with an employee can come back to haunt us, particularly when it’s time to lower the boom on an unproductive or insubordinate employee.

The Employee File

Employee files should be kept on everyone a manager manages. This file should be kept in a locked cabinet in a supervisor’s office; if a manager uses a computer to type his/her notes, they should not be on a shared drive. These notes are for the supervisor’s eyes only.

These employee files are extremely beneficial for keeping information chronologically up to date. When counseling is necessary, or performance appraisals or due, we’ll have information at our fingertips and need not rely on our past memory. This can also help us avoid the recency effect, i.e., the tendency to rely only on the most recent information when giving a performance review.

How to Document a Conversation

Virtually all managers give their employees oral notice about poor performance or minor misconduct. This notice can range from correcting an employee’s performance to noting an employee was tardy to verbally “warning” an employee that certain conduct is inappropriate and will not be tolerated. These warnings, given contemporaneously can be very effective in showing performance problems because of their immediacy. In fact, in cases where a manager contends that an employee had “some type of performance problem almost every day,” documentation of exactly these kinds of problems can be the most useful evidence.

Effective managers use different formats when taking notes for their employee file. In addition to documenting specific conversations, some managers keep lists of critical incidents (good and bad) that happen – accomplishments and contributions, problem areas and errors, and strengths and weaknesses. It can also be useful to keep track of an employee’s stated goals, ambitions and aspirations.

Such documentation should:

  1. Be as close in timing to the incident as possible. Ideally conversations should be documented on the same day they occur.
  2. Create a context for your conversation. Include the date of the conversation, the manager’s name and title and the employee’s name and title.
  1. Stick to the facts. Write down exactly what you said and exactly what the employee said.
  2. Include the “take away.” State the action plan you told the employee, being clear about the expectations you set for the employee to follow.
  3. If the conversation is a verbal warning, document this. In particular, be sure that you make notes of conversations even when it involves a meeting in which you presented the employee with a written disciplinary document or action plan. The document you gave the employee does not reflect the entire conversation about the issues discussed.

Too Much of a Good Thing

While most managers err on the side of neglect when it comes to documentation, it is possible to err on the side of overkill. Here are three examples:

1. Focusing only on the negative. Managers are often taught that documentation is for problems and, as such, fail to keep track of the positive. Not only can this skew an employee’s performance appraisal, juries don’t like to think that a manager is gunning for an employee.

2. Exaggerating. In an effort to highlight their concerns, managers often use dramatic words such as “always” and “never,” when documenting performance concerns. However, in reality, these can undermine your credibility (the employee is sure to point out the one time s/he was on time or exceeded expectations) and hurt you in court. It’s much more effective to stick to the facts to get your point across (Joe was late by at least 15 minutes on 13 out of the past 14 work days).

3. Over-documenting. A manager who documents everything may be perceived as harassing an employee through micro-management. While this isn’t against the law, anyone reviewing a file that apparently documents every insignificant detail is more likely to conclude that the organization is not a nice place to work or that the documenter has a clear agenda. This is especially true when a manager has over-documented one employee’s performance, but has provided relatively little documentation regarding other employees.

The Bottom Line

HR managers can play a critical role in helping their managers develop a documentation system that includes informal conversations, contributions and problems. Obviously, no manager should document every conversation with an employee. But where a problem exists that would justify discipline if it was recurring, some type of written documentation is needed.

This past Easter weekend, my seven-year-old finally asked me the dreaded question, ‘Mum, is there really an Easter bunny?’ There I was, stuck on the horns of a dilemma. To be honest, I’d never felt completely comfortable misleading my son, yet it was wonderful to see him hugging the man-disguised-as-the-Easter-bunny at egg hunts and building strategies about ways to catch him delivering presents. So, I rationalized that the end justified the means.

However, coming clean on the subject of the Easter Bunny is small potatoes in comparison to giving a bad performance review. Let’s face it, sometimes it’s hard to tell the truth – especially when it’s negative – which is why so many managers put off addressing performance management problems and why so many bad employees don’t get fired.

Every manager has, at some point in his or her career, dealt with unacceptable employee behavior. It could be someone who whines, assigns blame, worries incessantly, or watches the clock. It’s one of the most dreaded, complicated, and avoided situations supervisors encounter. There are numerous psychological reasons why managers fail to address poor performers, the co-workers’ resentment and the team dysfunction. Here are six of the most common:

Problem 1: The manager feels dependent upon the employee.

Sometimes, a poorly performing employee has some special talent or connection that makes them seem indispensable. In today’s tight lab our market, many managers continue to put time, money and energy into marginal staff members because they fear they won’t be able to find more competent ones.

Solution: Look at the big picture.

In truth, there is a huge performance gap between high and low performers in any organization – 30%-50% percent for unskilled jobs and up to 1000% for highly technical ones.

Poor performers, regardless of their technical merit, never justify their costs. To avoid this trap, recruiters should develop, and maintain, ongoing relationships with top recruiting sources. Keeping abreast of the job market, and keeping managers in the loop, can keep a manager from rationalizing his discipline avoidance with a ‘half the work of a technical genius is better than none’ argument.

Problem 2: The manager confuses discipline with punishment.

Managers don’t want to be put in the role of punitive parent or heavy-handed school principal, verbally rapping their misbehaving employees on the knuckles.

Solution: Provide skills training.

Managers who have this attitude generally don’t have the necessary performance management skills to apply positive and corrective discipline. When used appropriately, your discipline system doesn’t focus on punishing an employee for misdeeds, it provides a concrete opportunity for employees to take personal responsibility for their own behavior.

Problem 3: The manager feels sorry for the employee.

Perhaps the manager knows about a tough family situation or a recent divorce and doesn’t want to pile one problem on top of another.

Solution: Refer to appropriate resources.

It’s often the best managers that fall into this trap; because they genuinely care about their employees, they may become overly involved in their employees’ personal lives or emotional difficulties. As a result, it may be easier to make excuses for the poor performer rather than get him or her the professional help they need.

Managers can help avoid this trap by having a conversation with the employee about the employee’s observations of how well he/she is doing. Most people who can give an accurate assessment of their own work performance can identify areas needing improvement. Meet with the employee on a regular basis to assess his/her work more frequently and give immediate feedback. Urge the employee to use support facilities and help with the emotional/psychological aspects of the situation.

Problem 4: The manager has never told top management about the problem and/or convinced them of how serious it is.

Solution: HR needs to be involved.

Inform your manager as soon as an employee’s performance seems to call for intervention, even if you want to try to handle it alone. Review with your manager the criteria by which you ruled out unfairness factors as causes for unacceptable performance. Recount what you have done so far, and ask for coaching. Also, ask your manager to collaborate on a timetable for (a) ruling out all unfairness factors, (b) coaching and counseling the poor performer, and (c) taking action to separate should performance not improve.

Problem 5: The manager feels responsible for the employee’s poor performance.

For some managers, admitting that an employee has not met expectations signals some kind of failure for the manager. Could they have been so desperate to fill the position that potential problems were ignored during the interview or when references were checked? Often, managers blame themselves for a staff member’s failure, and are willing to do almost anything to insure the employee’s success.

Solution: Learn from your experience – But don’t pay for it:

First of all, it is impossible to completely predict a problem employee during the recruitment process – although there are some good clues. Some people are experts at creating a good impression, only to show little substance after they’re hired. Secondly, if your manager did err during the recruitment, learn from it. Perhaps your managers would benefit from interview skills training. Much better for a manager to learn from his or her mistakes than to pay penance by continuing to suffer a poor performer.

The costs of keeping poorly performing employees are significant. The direct costs include lost sales, customer dissatisfaction and damage to your reputation. Employees who have to pick up the slack feel resentful and lose their motivation. In addition, the manager loses any leg to stand on when it comes to expecting other employees to perform to reasonable standards.

Imagine what would happen if another manager confronted a different employee on anything.. say, poor attendance, drug use or even sleeping on the job? The employee could simply point to the poor performer and say, ‘As long as you let him get away with that, you can’t make me do anything’: the poorest performing employee always sets performance standards.

Managers can preach excellence but if an obvious problem is ignored, the words become an empty joke.

While a comprehensive treatise on effective discipline is beyond the scope of this article, there are a few rules of thumb worth keeping in mind when gearing up to face a problem employee.

  • Check for mixed messages. Is your compensation package consistent with your performance goals? If, for example, you financially reward employees for individual effort or encourage your sales staff to compete against each other, the odds are any attempt to create a productive team will fail. Employees who have unrealistically high performance goals may find that their ability to achieve them suffers when they take time out to help others. Before performance problems can be resolved, make sure that the formal culture is in sync with the informal culture.
  • Communicate credibly. All employees – especially workers with performance problems – need a steady stream of communication with their managers to get feedback on their performance. Managers must be specific about the changes they want, and gain commitment from the employee about specific actions and time frames for which they’ll be held accountable. Vague advice – ‘call me with any problems’ – doesn’t work, especially if the manager is usually unavailable when the employee calls. Managers need to ensure that they are available – in person, by phone, by e-mail, etc. – at times that work for both manager and employee.
  • Document, document, document. Be especially factual and concise in your interactions with anyone regarding the matter, regardless of what their job title or stated organizational role. Anything you do or say, including to peers and other employees, can be used to support a grievance or appeal. Therefore, it is best to start a written log of everything you do or say about a performance problem. If things improve, file the log. Do not discard it.

The Easter Bunny Revisited

Well, after sitting quietly for about 30 seconds after his question, I gave him a soul-searching look and said:

‘Would you really want to know?’

He was silent for a minute and then, looking at me squarely in the eyes, said:

‘Yes, I do. I kind of know already, mum, but I just want to hear it from you.’

So, I confessed, feeling a little sad and a little relieved, and he looked just as I’d imagined he would – a little sad and a little older.

Telling the truth can be difficult but it does have its rewards. Ideally, the primary objective of a performance improvement/ disciplinary conversation is to gain the employee’s agreement to change behavior and return to fully acceptable performance, just as telling your child a difficult truth helps build a foundation of trust and credibility. Even when mum isn’t ready to give up the Easter bunny.

Employees who “get no respect” are future plaintiffs, particularly when they’re being fired. In fact, the results of structured interviews with 996 recently fired or laid-off workers (Administrative Science Quarter, September 2000) found that the way an employee was treated at the time of termination had nearly twice as much effect as any other variable in predicting who would sue for wrongful termination and who would not; less that half of one percent of the respondents who felt they had been treated with “very much dignity” at their time of dismissal filed claims in comparison to 15 percent of those who said they had “not at all” received respectful and dignified treatment at the time of termination.

What employees were told when they were let go was also important. Less than 2 percent of terminated employees who were given an accurate and honest explanation of why they were being fired filed wrongful termination claims. In contrast almost 20% of employees who were given no explanation (or this was the first time they were hearing it) filed a claim.

I Don’t Deserve to Be Treated This Way

Looking at the reasons employees file wrongful termination lawsuits (and why they don’t) offers us some insight into how our employees expect to be treated while they’re still working for us. Basically, our employees want us to be FAIR. In particular, they feel entitled to two things from their managers – interpersonal sensitivity and accountability. In other words, employees believe they deserve to be treated politely and respectfully (regardless of the circumstances) and they expect truthful explanations for actions and decisions that that affect them personally.

There are some good psychological reasons why our employees want to be treated this way. For example, research has consistently shown that people who are treated with dignity emerge from experiences – even painful or negative ones – with a sense that they have been treated fairly. And being treated fairly helps us not take the negative outcome quite so personally; when we’re disciplined for something we’ve done, we can handle it. When we’re treated like a bad or insignificant person, it’s a different ball game.

Message from Jurors: Don’t Make a Bad Situation Worse

Jurors apparently agree. In my experience, jurors in employment lawsuits are much more motivated to punish an employer whom they believe has been rude or insensitive during a tough time they are to reward a plaintiff whom they like or feel sorry for. In fact, jurors don’t even have to like, respect, or empathize with a plaintiff if they feel indignant about how an employer handled a termination, layoff or discipline decision.

The good news is that the employer (and, in particular, the immediate supervisor) who treats employees fairly throughout the employment process has a great advantage not only in terms of reducing the likelihood of employees filing claims, but in defending the ones that are filed.

The Bottom Line

While no one is happy about being terminated, it’s the way it’s handled that most often gets the litigation ball rolling. Employees who are fired without warning, who are, without cause, marched out the door by security, or who learn about it through a nasty email are employees with an axe to grind. And there are plenty of lawyers to help them grind it. “It’s not FAIR” is the battle cry of the legal war zone.

Of course, not all mistreatment is intentional. Few managers are trained in how to communicate around discipline and termination and, as a result of their own discomfort, may come across as emotionally uncaring or cold (or take the chicken’s way out and communicate it from a distance). Let’s hope employers wise up to the fact that a manager who doesn’t know how to deliver bad news – a skill that can be easily learned – can be as detrimental to the workplace as one who makes bad decisions.

This weekend, my six-year-old finally asked me the dreaded question, “Mom, is there really an Easter bunny?”

There I was, stuck on the horns of a dilemma. To be honest, I’d never felt completely comfortable misleading my son, yet it was wonderful to see him hugging the man-disguised-as-the-Easter-bunny at egg hunts and to strategize about ways to catch him delivering the basket. I loved revisiting how magical the world appeared when I thought the Easter bunny was real. So, until now, I’d justified trading a little deception for some short-lived magic.

Performance Counseling is Not for Wimps

If coming clean about the Easter bunny can cause a grown woman to break into a sweat, imagine the anxiety managers often feel about discussing poor performance. Let’s face it; sometimes it’s hard to tell the truth, especially when it’s negative and most especially when you actually like the person you need to give negative feedback to. This is one reason why incompetent or ill-equipped employees don’t get fired.

Managers Held Hostage

Part of the problem is that some managers believe they have two options; a) ignore the problem and spare the employee’s feelings (and their own), or b) devastate the employee (and stress themselves out) by lowering the boom. Few of us want to hurt the feelings of people we like, which is why option A is so seductive.

However, there’s also option C. Rather than let ourselves be held hostage by our empathy, why not use it as the foundation for a frank discussion? “Susan, I really like you and very much want for you to succeed. Here are the barriers I see standing in your way . . . How can I help you get your performance up to par?”

Communicating your genuine liking for the employee is a great way to assure the employee that both of you are on the same team and still get the reality of his/her performance across. And, should the employee fail to improve, it’s less likely that s/he will take a termination personally.

The Easter Bunny Revisited

Back to the Easter Bunny. Well, after sitting quietly for about 30 seconds after her question, I gave him a soul-searching look and said, “Would you really want to know?”

She was silent for a minute and then, looking at me squarely in the eyes, said, “Yes, I do. I kind of know already, mom; I just want to hear it from you.” So, I fessed up, feeling a little sad and a little relieved. And, she looked just as I’d imagined she would – a little sad and a little older.

Telling the truth can be difficult but it does have its rewards. Ideally, the primary objective of a performance improvement / disciplinary conversation is to gain the employee’s agreement to change behavior and return to fully acceptable performance. Just as telling your child a difficult truth helps build a foundation of trust and credibility. Even when the parent isn’t ready to let the Easter Bunny go.