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Best Practices in Documenting Employee Discipline

Thadford A. FeltonARNSTEIN & LEHR LLP

120 SOUTH RIVERSIDE PLAZA | SUITE 1200CHICAGO, ILLINOIS 60606

P 312.876.6934 | F 312.876.0288tafelton@arnstein.com

THERE ARE MANY BENEFITS TO DOCUMENTING employee misconduct. The documentation may help the employee realize that certain performance and/or behavior is unacceptable and help that employee

change his/her performance and/or behavior in the future. This in turn will lead to less trouble in your department specifically and the organization as a whole.

Documentation also acts as an "insurance" policy for you and the company. If the employee later challenges an action that had been taken against him/her as a result of poor performance and/or behavior or files a grievance or lawsuit, correct documentation can prevent such actions from continuing beyond the preliminary stages.

To assist you in documenting employee misconduct, set forth below are some best practices to follow.

Have An Employee Discipline Form. 1. A pre-printed Employee Discipline Form will make documenting employee misconduct easier for managers and supervisors and it ensures that uniformity is maintained in the process. The pre-printed fill-in-the-blank form should, among other things, set forth blanks for basic information regarding the employee, the time and date of the incident, a description of the incident for which the employee is being disciplined, the specific policy or work rule that was violated, and the action that will be taken against the employee. Make sure that the form is filled out in a legible manner and that the person who is completing the form both prints his/her name and signs his/her name on the form so that if follow up is necessary, you will know who to contact.

Conduct A Full And Fair Investigation. 2. Before you decide to discipline your employee, conduct a full and fair investigation of the events that led to the discipline. In certain circumstances it may be appropriate to have someone other than the employee's direct manager or supervisor conduct the investigation and/or review the discipline decision. If there were witnesses to the misconduct, talk to those witnesses. Note on the Employee Discipline Form the identity of any such witnesses and document what those witnesses had to say in a separate document. Sometimes information from other sources may lead you to reconsider whether discipline is appropriate.

Get The Facts.3. For employee discipline documentation to be effective, it must be factual. The goal in completing such documentation is that anyone should be able to read the Employee Discipline Form and get a clear picture of what happened and why the discipline was imposed.

Be Objective. 4. In completing the Employee Discipline Form, it is important to be objective in your description of the incident. Describe the conduct of the employee that led to the discipline, rather than

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the attitude of the employee or your personal views of the employee.

Be Clear and Specific5. . In completing the Employee Discipline Form, it is important to set forth the facts in specific detail. Be clear and specific about what the employee did that violated a company policy or work rule. For example, do not say that the employee is lazy, but describe the facts that have led you to the conclusion that the employee is lazy. The more specific factual detail that you can record on the form, the better. If not enough space is provided on the form, write on the back of the form or attach additional pages as needed.

Complete The Form While The Facts Are Fresh In Your Mind. 6. As everyone knows, one's memory of an event is better right after the event occurred as opposed to days later. So complete the Employee Discipline Form as soon as possible after the misconduct occurred so that your recollection will be clearer.

Get The Employee's Acknowledgement. 7. Make sure that you review the completed Employee Discipline Form with the employee and have the employee sign the Employee Discipline Form. Such an acknowledgement shows that the employee has been told that that his/her action was a violation of a company policy or work rule and prevents the employee from claiming in the future that he/she did not know of the problem. In the event that the employee refuses to sign the Employee Discipline Form, place a notation on the form that the employee refused to sign the form and record the date on which the employee refused to sign the form. In addition, have the person in front of whom the employee refused to sign the form sign the Employee Discipline Form.

Allow The Employee To Explain The Conduct.8. Record the employee's version of events on the Employee Discipline Form. In talking to the employee, describe the incident fully so that the employee can respond; explain to the employee that no conclusions have been reached; stress the company's policy of confidentiality, but do not guarantee confidentiality; and ask the employee who else you should speak with about the incident. While the explanation of the employee may not alter the discipline that is being imposed, it allows the employee to tell his/her side of the story. It also helps to preserve the employee's version of events in the event the employee changes it in the future.

Be Fair And Honest. 9. Managers or supervisors will undoubtedly have different relationships with different employees. They will like some and tolerate others. However, managers and supervisors need to be fair and uniform in imposing discipline regardless of who is being disciplined. If necessary, review your employee handbook with managers and supervisors on a periodic basis to ensure that they are familiar with your policies and are uniformly enforcing those policies. Not only is discrimination in the disciplinary process unlawful, you will put your reputation and the respect that your employees have for you at issue if you are not fair.

Use The Discipline Process As A Positive Experience. 10. While the responsibility is on the employee to improve his/her conduct, you may want to offer a reasonable solution to help the employee. With some employees it may be beneficial to help map out some definitive next steps that the employee will take to improve his/her conduct in the future. However, remember that if you are going to offer employee improvement plans, such plans must be created for all employees.

Documentation of employee misconduct must be handled as a business issue. When appropriate, involve your human resources department, personnel office or legal counsel at your earliest convenience. While you may feel that your time as a supervisor or manager would be better spent doing anything other than documenting employee misconduct, the documentation process is essential to protecting yourself and your business.