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Incident Descriptions and Performance Improvement

“Document, document, document!” That’s what you hear all the time as a manager and business owner. The logical need for documentation is clear: It not only helps you recollect specific details that you can later use to justify your actions, but also lends a layer of insulation to the corporation by demonstrating that your decisions were based on sound business fundamentals. In addition, many arbitrators adhere to the adage, “If it isn’t documented, it didn’t happen.” Therefore, you’ll need to rely on signed employee disciplinary notices and performance evaluations to mount a defense.

Knowing how to document, however, is a different story. That issue will be clearly discussed in this chapter along with the structure of the employee improvement plan. Following is a typical description of events that led a company to take disciplinary action against an employee who had received prior warnings (both verbal and written) regarding substandard job performance.

Incident Descriptions

This customized narrative section needs to be composed on a case-by-case basis. There are many examples of narratives in this book. Obviously, no one description could fit everything that is going on in your office or work environment at any given time. On the other hand, it helps to see what other employers have written in describing similar employee transgressions. You must describe as accurately as possible the specifics of the problematic performance or conduct.

Incident Description Dos and Don’ts

There are several key rules that will help you compose accurate and legally defensible incident descriptions. First, you must use the traditional who-what-where-when-why-how paradigm when creating the correspondence. For example, you might write:

A second rule that will help you compose adequate incident descriptions is to use your senses in describing the events. For example, if you are writing up a secretary for insubordination and for displaying a bad attitude, paint a picture with words by describing the employee’s specific actions and behaviors that created that perception in your mind:

A third rule of thumb is to take any subjective evaluations and make them objective by adding concrete objects or facts to substantiate your claim. For example:

Any time you can describe your observations in behavioral terms, you will strengthen your case.

Fourth, in addition to the facts surrounding the individual’s problematic performance, you need to include the negative organizational impact that resulted from the employee’s actions. For example, you might conclude the incident description section with one of the following “tags”:

That element of negative organizational impact is an important part of the disciplinary process because it justifies your actions.

Fifth, whenever possible, write down the employee’s response to your questions in this section of the write-up. By documenting “When I asked you how this occurred, you told me . . . ,” you demonstrate that you have listened and considered the individual’s side of the story before reaching a conclusion. It also reduces the risk that the employee’s story will change later.

Performance Improvement Plan (PIP)

The Performance Improvement Plan is the next part of our model correction notice. There are five key elements in the improvement plan (outlined below) for a particular employee:

Performance Improvement Plan

1. Measurable/Tangible Improvement Goals

For progressive discipline to work, it has to have a concrete outcome. That outcome may take the form of increased production numbers, decreased errors, improved interpersonal communications, or a tardiness-free attendance record. In addition to the previous sample, the following examples demonstrate measurable outcomes:

Notice that each of these statements includes the phrase I expect . . . Remember that under the rules of workplace due process, you are obliged to inform the employee of what he has to do in order to correct his problematic performance. This statement should be written in a constructive manner so that it can clearly establish what is expected of the employee in terms of future behavior. By doing so, it demonstrates that you are communicating with the employee to help him succeed on the job.

2. Training or Special Direction to Be Provided

Whenever possible, it’s best to address a problem with positive tools as opposed to negative methods. Training is therefore a better alternative than punishment. This important section of the correction notice further documents your attempts to help the employee succeed on her job. Even if discipline must be administered in the form of a warning, it should still be delivered hand in hand with training and other affirmative employer efforts.

Keep in mind as well that training is the glue that binds people to a company: Everyone likes learning new things and developing new skills. And training, more than anything, helps people reinvent their jobs in light of their companies’ changing needs. Although motivation is internal and not external, nothing drives an employee to renewed commitment more than being challenged and stimulated by a new learning curve. Here are samples of things you might include:

As you can see, the training or special direction can be as simple as providing the employee with a copy of a policy that was violated, or it can be a matter of heightened feedback, hands-on training, and off-site workshops. The cost of an off-site workshop is a fairly small investment that simultaneously increases worker productivity and minimizes the company’s potential liability should the employee later be discharged and file a lawsuit.

Note, however, that the goal here is not to burden yourself or the company with being responsible for assuring the employee’s success. Instead, shift the responsibility to the employee to research the necessary workshops, read the appropriate policies, and otherwise follow up with you regarding his progress. And here’s why: In a typical wrongful termination lawsuit, the judge will ask what the company, as a good corporate citizen, did to help the employee improve.

If the company created hurdles for itself by promising one-on-one training time or outside workshops that it never ended up offering, then the burden is on the company for not following through and acting irresponsibly. In comparison, if the company provided opportunities to the employee that he never took advantage of or followed up on, then the worker comes across as the irresponsible party.

Here’s a common example to keep in mind: In our previous example, we stated, “For the next five days, please meet with Dave Wilson daily before you begin your rounds to discuss your delivery agenda.” First, you’ll note the qualifier “for the next five days.” It’s always better to cap time commitments rather than keep them open-ended. So meetings should be scheduled “once a day for five days” or “once a week for three weeks,” but never just “once a day” or “once a week.” In the written warning, “once a week” may appear to a third party to mean “once a week forever” because there was no cap placed on the commitment.

Second, notice that the burden was placed on the employee to meet with Dave, and not vice versa. The employee has to gain trust by meeting with his lead once a day for five days. Therefore, it shouldn’t be the lead’s or management’s responsibility to ensure that the employee indeed shows up. If and when the worker fails to show up, then he is seen as irresponsible for not upholding his end of the bargain. Again, the reasonable employer may have no choice but to terminate an employee who is not acting responsibly toward his job and toward management in light of the performance problems he’s experiencing.

Enlightened leadership is all about looking for opportunities to combat problem performance with positive training. You’ll find that the problems disappear and commitment goes way up. After all, when it comes to treating others with dignity and respect, people will respond in kind. All you have to do is raise their expectations of themselves.

3. Interim Performance Evaluation Necessary?

The interim performance evaluation is an interesting concept. When you’re challenged in court for wrongful discharge, the arbitrator, judge, or plaintiff’s attorney will look at the totality of events leading up to your former employee’s termination. Disciplinary write-ups alone won’t tell the whole story.

When a long-term employee suddenly spirals downward in performance, you may want to issue an interim performance evaluation to break the chain of previous positive evaluations. If there is inconsistency between an employee’s annual performance evaluations and progressive disciplinary notices, the ambiguity may be interpreted against your company when you try to support your decision to terminate.

You normally won’t have to perform an interim evaluation unless you are dealing with a more senior employee with a very positive history of performance evaluations whose performance has recently nosedived. However, a long, productive work history evidenced by a collection of positive annual reviews may indicate that the current problem stems from something you haven’t identified.

After all, juries tend to side with employees, not employers, in judging wrongful discharge claims. Juries will reason that annual reviews cover years of time; progressive disciplinary notices, in contrast, may only represent one bad day in the office. Consequently, the historical annual reviews will be given more weight than your specific discipline. You’ll have to justify any inconsistencies between performance reviews and disciplinary actions to demonstrate that you are dealing fairly and equitably with a longer-term employee.

For example, perhaps you’ve recently assumed responsibility for a new unit, and you find that a particular employee’s performance is unacceptable and critically in need of improvement. In that case, what you may have is an underperforming employee whose scores on past annual evaluations were acceptable because the former manager was afraid to confront the employee concerning her behavior for fear of upsetting her. This is a textbook case for an interim performance appraisal.

You must be sure to account for the current behavior or performance problems during that evaluation. Tell the employee that this out-of-cycle review is necessary because you don’t feel that her prior evaluations accurately reflect her overall job performance. Inform the employee as well that you intend to give her an overall rating of “not meeting expectations.” You may, however, review her again in ninety days (or whatever you deem to be an appropriate period) in order to objectively evaluate her performance progress.

Is this a confrontational meeting? Yes. The employee will sense that you are thoroughly and carefully going about documenting her performance transgressions. Still, you may be doing the individual a big favor by identifying performance areas that require immediate improvement for her own job security and for the good of her career. It’s tough but fair. And it holds the employee to exacting standards that keep you in control of the situation.

This process will ensure congruity with your disciplinary write-ups. The end result will be progressive disciplinary notices plus an unacceptable performance evaluation: just the kind of consistency you need to make a termination stick if necessary.

4. Employee Assistance Programs (EAPs)

EAPs are highly recommended because they are one of the most effective “hidden” benefits available today. According to the Department of Labor, up to 12 million people nationwide—8 percent of all employees—use illicit drugs while working; an additional 13 million full-time workers, or 8 percent of the U.S. workforce, are heavy drinkers. The costs to you are obvious: Absenteeism, increased accidents resulting from compromised safety, theft, lower productivity, and lower morale contribute to losses estimated in excess of $30 billion annually.

How can an EAP help? EAPs provide confidential professional support for employees and their families to help them solve problems that affect their work performance and personal lives. Through an EAP, your employees can voluntarily get help before their personal problems become job performance problems. Your company will benefit directly by reducing your insurance claims, minimizing unauthorized absenteeism, and allowing your managers to focus on productivity and performance—not personal counseling.

In addition to alcohol and drug abuse, EAPs provide education on a variety of wellness issues and offer work-life programs that help organizations broaden the scope of their family-friendly policies. They also assist in the identification and resolution of productivity problems associated with marital, financial, legal, stress, and emotional difficulties that may affect employees’ job performance.

Remember, you don’t want your managers inquiring about their staff’s personal problems. That could open up a whole can of worms because once managers acquire information that may protect an employee from discipline under the Americans with Disabilities Act or other law, your organization may be obligated to reasonably accommodate the employee’s need. It’s much easier to manage performance than to have to accommodate problems in employees’ personal lives.

The premium cost of an EAP typically ranges from $1 to $2 per employee per month for a core program. (It can cost more, however, depending on the benefit level that you choose, and the addition of work-life and wellness programs typically adds $0.25 to $1.00 per employee per month on top of the EAP cost.) So if your company has 200 employees, the EAP could cost you between $200 and $400 a month. If you’ve got 20,000 employees, you’d have to negotiate a volume discount! But the low cost per capita is quite reasonable considering the value of the benefits available.

In addition, you’ll have the option of making formal referrals (as opposed to voluntary referrals) when an employee’s performance or behavior disrupts the workplace. For example, if you’ve got an employee who keeps blowing up at coworkers or verbally harassing subordinates, then you can firmly request that the employee attend an EAP assessment session that you set up.² You would inform the intake counselor of the nature of the problem, and the EAP practitioner would then specifically address those issues in the evaluation.

Neither form of referral—voluntary or formal—should be mandatory.³ The employee always has the choice of attending. The only difference is that with a formal referral, you become involved in the process. You discuss your perception of the work performance problem on the front end and receive limited feedback about the employee’s attendance, compliance, and prognosis via the employee’s signed release. At the minimum level of service, employees typically receive three counseling sessions per problem for free; they may elect to use their own health care insurance for further treatment.

Furthermore, if an employee with flagging performance appears mentally depressed, under the influence of alcohol, or potentially hostile, you can formally refer the employee to the EAP and then not permit him to continue at his job without a “return to work” release from a licensed health care practitioner. Such leaves are typically paid through the period of initial evaluation. Beyond that, the employee must use accrued time off for any further treatment. These measures simultaneously balance the needs of the particular employee with the safety of others in the workplace.

For these reasons, our write-up paradigm will include a section for EAP referrals. Most of the sample write-ups will include voluntary referral language, but some will include a formal referral, using language such as the following:

One last note on EAPs: You can strongly suggest that an employee contact the EAP, but you shouldn’t mandate that he attend by threatening termination. After all, the employer-employee relationship blurs when you mandate that a worker see a mental health professional, for example, outside of the workplace. As a matter of fact, in certain states, that could even give rise to a claim of invasion of privacy. You’ll probably be better off making a note in your log of the employee’s refusal to cooperate with this outside provider and leaving it at that.

Although you can lead a horse to water, you can’t necessarily make it drink. But you sure can document your affirmative efforts to aid an individual. If and when a judge evaluates the employee’s wrongful discharge claim, she’ll clearly see the merit in your efforts and the unreasonableness of an obstinate employee who refused to get help for himself.

5. Employee’s Personal Improvement Plan Input and Suggestions

A key part of the overall performance improvement plan is the individual’s personal input into the process. In the age of the knowledge worker, where the value of intellectual capital far outweighs the value of machinery, formulas, or any other assets, it becomes critical to have an educated workforce buy into your plans. That’s what open book management and motivation theory are all about. And it’s what enlightened leadership thrives on.

An appeal to your workers to join with you in fixing problems is the ultimate goal of the entire disciplinary process. By showing your commitment to making employees successful and proving to them that they’re still part of the team, you provide them with recognition and open communication even when the relationship is strained. Little else need be said about your values and priorities in terms of respecting employees and treating them with dignity. Besides, it’s just the right thing to do.

Don’t be surprised, though, if not all employees accept your olive branch. Some people just can’t get past the insult of being disciplined; others simply won’t be committed enough to invest themselves in the process. Once again, however, should you be challenged by an arbitrator regarding your efforts to willfully rehabilitate a worker, you’ll more readily pass the test. Simply put, if this section of the write-up is left blank, it reflects poorly on the employee. Like other sections of the write-up, this section shifts the responsibility for success or failure to the individual and away from your organization.

1 I don’t recommend writing that an employee “created a hostile working environment” or “sexually harassed” a coworker. Such absolute statements are dangerous because if the harassed employee sues, your own documentation will be used against you. It is better to state “your actions might suggest” or “could be perceived as hostility.”

2 This is a matter of contention among labor lawyers and employment experts. Some argue that formal referrals are appropriate only in cases where you suspect suicide or violence. They feel that the voluntary, no risk, and confidential nature of the EAP is compromised if you, the employer, make it an extension of your disciplinary authority. That’s a point you should discuss with your labor attorney and EAP consultant before reaching a decision about making formal versus voluntary referrals.

3 However, some employers do require a referral; the employee must contact the EAP as a condition of employment. I don’t recommend this, but you could discuss this option with your labor attorney and EAP provider.