Document Employee Misconduct

Document Employee Misconduct

One of our many functions at the Johnston Business Law Group is to prepare, review, and revise employee handbooks and other Human Resources policies. Aside from contract review, employment law matters take up the vast bulk of our time here. While employee handbooks are a valuable resource, other HR policies maintained by ownership or by the HR department are likewise indispensable, particularly for business owners who delegate HR functions to other staff.

One of the key policies in any handbook is the employee discipline policy, often described as a progressive discipline policy. Whatever you want to call the policy, it is important to have supplemental policies that govern how to document employee misconduct. Most disciplinary policies have some sort of progression from informal counseling, formal or written counseling statements, performance improvement plans, suspension, and termination. I hope, for all employers’ sake, that the policy maintains the right of the employer to skip steps.

A common question we receive is managing the discipline process. Given its confrontational nature and the potential for an employer to treat employees differently based on how aggressive or confrontational an employee might be, it is helpful to have a policy that can start an employer on the disciplinary path. Some items to consider putting into a policy might be:

  • What are the trigger events for having an informal discussion with the employee on a given policy? Is it once? The answer for safety policies is probably yes, but for attendance problems, it may be two or three times in a pay period. The triggers will vary from policy to policy, depending on the severity of the matter.
  • What are the communications policies, who will communicate, and how will communications be handled? By email, by text, by internal communications systems?
  • What is the process for creating a PIP, and how is it reviewed before presenting the PIP to the employee?
  • Who is responsible for measuring compliance with the PIP? What are the backups?
  • What are the independent criteria for determining whether to terminate someone for policy violations?
  • What is your process for internal management or legal review before a PIP, negative job action, or termination?

Let’s take one of my pet peeve issues–tardiness. Showing up late to work is hugely disrespectful as well as disruptive. It is disrespectful to the employee’s coworkers, who have to pick up the slack created by the delinquent employee, disrespectful to management and ownership, and disrespectful of the company’s customers and clients. Tardiness disrupts the workplace, workflow, and mental state of coworkers and management, particularly when tardiness is frequent and frequently accompanied by lame excuses.

Business owners often ask me how to handle this situation, to which I always say, “Document, document, document. And when that is done, document some more.” The trigger point for our tardy employee is, for example, three tardies in a two-week pay period. In addition to time records, which should show when the tardy employee is clocking in or logging in, managers and business owners should communicate with the employee each time he or she is late to work. Communications should demand reasons for being late, plans for addressing the tardiness (such as leaving home a bit earlier, trying a different route to work, or alternatives for scheduling if possible. These communications should be stored in the employee’s file.

Why communicate and store the communications–often employees will make promises to do better, and that often results in the employee creating a case against their behavior.

After informal communications, the next step is to prepare and document a performance improvement plan or other formal written counseling. When it is time for formal counseling or PIP, it is a good idea to bring another manager or outside counsel into the matter just to make sure that there is a factual need for the counseling or PIP that is objective and documented. Such formal counseling statements or PIP should have facts in them (i.e., proof of all the late clock-in times and those communications). Next, the performance improvement plan should reiterate the policy that has been violated, perhaps along with the rationale for the policy’s existence. Finally, the PIP should include specific, measurable action steps the employee is to take to improve their behavior and a re-evaluation deadline. For example, for our tardy employee, the employee must be clocking in on time for the next four weeks.

Quick Aside: I know it has become fashionable in some employee circles to say that the employee should not sign such a statement because it would create a contract, and if they don’t sign it, the employer can’t enforce it. To which I say–“Bull Excrement!!” It certainly is nice that the employee signs it, but it is not required under any statute, regulation, or case law I have ever seen. If an employee refuses to sign the PIP, the employer should make note of that refusal and file it away.

All of these steps, communications, PIPs, time records, and anything else related should be kept contemporaneously. And why, you may ask?

Well, as I have said many, many times, EVERYONE belongs to a protected class, and therefore, everyone can bring a discrimination claim for poor treatment based on those protected classes: age, sex, religion, race, disability, national origin, color, and a host of other protected classes created by federal, state, and increasingly, local laws. So someone who is fired for being tardy could bring a discrimination suit (and often do). And this is when pulling out your employee file with all this documentation will save you.

If there is a business reason for terminating an employee, such as tardiness, failure to abide by reasonable employee policies, safety violations, or any other business reasons, such business reasons will usually defeat any claim for discrimination. Of course, business reasons cannot be a “pretext” for terminating someone.

If the employer maintains contemporaneous records of policy violations by the employee, it becomes very, very hard for the employee to prove that the business reason was a pretext for discrimination. Often an employer will come to me saying, “I need to fire X employee, but I am afraid they will sue.” To which I will respond, “Our legal system makes it easy to sue on purpose; even in an at-will employment state like Maryland, a discrimination suit is always possible but not always successful. Do you have the contemporaneous documentation of why you want to fire this person?” Most of my clients in the past have said, “Ummmm….well….not really.”

I want my clients and all small businesses to do better on this score.

I know documenting employee performance is a pain, and dealing with employee misconduct is even more of a pain. But small behaviors, like a quick email, “Hey, Bob, I noticed you have been late in three of the last five shifts. You know that we take on-time behavior seriously. What is going on?” and then saving the email and the reply does not take long. I know most small employers don’t have time to develop these kinds of policies, but the internal procedures that are created for documenting employee policy violations go a long way to protecting the business against discrimination suits or complaints.

If you are interested in developing your HR policies, please schedule a consultation to discuss your needs.