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In last week’s Tip, we reviewed guidelines for handling difficult conversations with employees. What happens when that conversation doesn’t lead to performance or conduct improvements? And when should you document these conversations? Here we address these and other common questions about documenting personnel issues.

Q: Why do I need documentation when my employees are ‘at-will’?

A: Generally, “at-will” means you can terminate an employee for any reason, at any time, as long as the reason is lawful. If your decision to terminate is challenged, you can use documentation to help support that you made the employment decision for legitimate business purposes. Thorough documentation can also help show that you treated the employee fairly and provided him or her with an opportunity to improve.

Q: I’ve spoken to my employee several times about missing deadlines. When should I start documenting the issue?

A: First, establish a policy for how your company will address performance issues and apply your policy consistently. If an informal conversation doesn’t lead to improvement, documenting a formal conversation may be your next step. Make note of your conversation with the employee and set clear expectations for improvement. Consider sending the employee a follow-up email to confirm understanding and ask the employee to provide written acknowledgment of the discussion.

Note: Some states, such as Massachusetts, require employers to notify employees when certain documentation is added to their personnel file. Check your state and local laws for more information.

Q: After several verbal conversations, my employee still isn’t showing signs of improvement. What should I do next?

A: If an employee’s behavior does not improve after documenting several verbal warnings, consider scheduling a more formal face-to-face meeting with the employee. Before the meeting, prepare a written warning that addresses the following elements:

  • Summary of the issue: Summarize the issue and include specific examples, when each instance occurred, and the impact it has on the company and co-workers. Only include factual information and reference any previous discussions you had with the employee, including the dates.
  • Performance expectations: Emphasize that you are committed to the employee’s success and outline the specific steps he or she needs to take in order to improve and by when. Identify the resources, support, and training opportunities available to help the employee succeed.
  • Consequences: Explain the consequences for failing to improve, such as additional disciplinary action up to and including termination of employment.

Consider using a template for written warnings that addresses the elements covered above. After you have prepared the written warning, meet with the employee to discuss the issue and consider having another manager sit in as a witness. Have the employee and witness sign the written warning and send a follow-up note to the employee reiterating what you discussed.

Q: My employee refused to sign the documentation I provided, what should I do?

A: Explain that the purpose of the signature is to confirm that the employee received the information, not that he or she necessarily agrees with it. Give the employee an opportunity to provide a written statement. If the employee still refuses, make a note on the record that says he or she would not sign it and initial and date the form.

Q: Is there a difference between documentation for policy violations versus performance improvement?

A: Generally, after investigating the issue and confirming a conduct or policy violation isn’t due to a disability or other protected reason, you may choose to initiate disciplinary action. Depending on the problem, issue a verbal or written warning (or other form of discipline) and make it clear that you expect immediate and sustained improvement. When handling performance issues, employers may choose a tone that is more consistent with coaching than discipline and provide the employee with more time to show improvement, such as 30, 60, or 90 days.

Q: During a performance meeting, an employee said they have a disability that is causing performance issues. What are the next steps?

A: As soon as an employer becomes aware that a disability may be causing performance issues, the employer must begin an “interactive process,” or dialogue, with the employee. Note: An employee does not need to use the term “disability” in order to initiate this process. For example, “I’m having trouble getting to work on time because of medical treatments I’m undergoing,” should trigger the interactive process.

During the conversation, discuss how the disability impacts performance and what accommodations may help the employee perform the essential functions of his or her job. Under the Americans with Disabilities Act (ADA) and similar state laws, you may be required to provide a reasonable accommodation (or job modification), unless doing so would impose an undue hardship on the business.

Q: Do I really have to document employee issues? I have too much to do as it is.

A: Since delivering negative feedback can be uncomfortable, some managers avoid the issue until the employee’s performance or conduct issues become severe. However, if you ever have to respond to wrongful termination, discrimination or related complaints, documentation can help show that the issue has been ongoing, you have taken necessary steps to address it, the employee was aware of the problem, and that he or she failed to improve. Further, the interaction doesn’t necessarily have to be confrontational or negative. Typically, the conversation is more pleasant when you acknowledge the problem early.

Conclusion:

Documenting employee issues can feel overwhelming and frustrating, however it can help employees stay on track and support future employment decisions.

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