4
Consequences, Rebuttals, and Employee Acknowledgments
As an employer conducting an internal investigation, you’re not bound by legal hurdles like proving that the employee is guilty “beyond a reasonable doubt” or “by a preponderance of the evidence.” Instead, your burden lies in:
1. Conducting a good-faith investigation in a timely manner
2. Reaching a fair and reasonable conclusion
Therefore, in all that you do, you must pass a test of predictability and consistency. Predictability in discipline requires that you respond in the same fashion to all similar employee offenses. Consistency in discipline requires that all employees be treated in a similar manner. The best place to demonstrate your predictability and consistency is the Consequences section of the write-up because it must, by definition, be clear, concise, and unequivocal. Let’s look at an example.
Consequences
Positive: I will remain available to help you and discuss areas where you require additional support. If you meet your performance goals, no further disciplinary action will be taken regarding this issue. In addition, you will develop a greater sense of accomplishment in helping our hospital to meet its production goals and in providing direct support to our patient care areas.
Negative: The main purpose of this corrective action is to identify, correct, and prevent a future recurrence of a performance problem and to prepare you for satisfactory service in the future. You are now being placed on final written warning. Failure to demonstrate immediate and sustained improvement may result in further disciplinary action up to and including dismissal. A copy of this document will be placed in your personnel file.
Scheduled Review Date: Ninety days (August 1, 2017)
If it’s easier to engage in a dialogue about performance problems, then supervisors (even supervisors who typically avoid confrontation at all costs) will be more willing to address problems early on before they get out of control. That’s why positive consequences always precede negative ones. They point the way to future solutions by rewarding good behavior.
Positive Consequences
I will remain available to help you and discuss areas where you require additional support. If you meet the performance goals, no further disciplinary action will be taken regarding this issue.
This statement offers a positive motivation to change behavior or improve performance. Assuming that the employee is being disciplined for the first time, you can hope that she’ll latch onto this one statement above all others.
The next sentence, In addition, you will develop a greater sense of accomplishment in helping our hospital to meet its production goals and in providing direct support to our patient care areas, is in italics because it serves as an optional, customizable statement to further encourage the employee to improve performance. Other such sample statements include:
In addition, you will develop a sense of accomplishment in helping our company collect on outstanding receivables and meet its cash flow goals.
In addition, you will successfully complete your six-month training period and gain more independence and autonomy on your job.
By correcting your tardiness problem, you will help our department meet its production goals while minimizing last-minute overtime costs and staff rescheduling.
In addition, you will enjoy more positive interpersonal relationships with your peers and gain more satisfaction at work.
By communicating more openly with me when something bothers you or makes you feel singled out, you will be less inclined to deny your feelings or to lash out at others who are unaware of your concerns. You will also be less likely to jump to conclusions in the absence of facts. You will consequently establish better rapport with your coworkers and learn to address smaller issues before they become larger problems.
In addition, by maintaining a work space that is free from clutter, you will gain a better sense of your priorities and manage your time more effectively.
In addition, by confronting performance and conduct problems early on while they’re still small challenges, you’ll minimize the chance that they will become major impediments in your working relationship with your subordinates. You will likewise strengthen your perception as a fair and communicative leader.
Negative Consequences
It is critical that every disciplinary write-up include clear, specific, and unambiguous Consequences of an employee’s failure to improve performance. Unfortunately, many managers either leave out this Consequences section altogether or paint vague pictures of what can happen if employees don’t change their performance or behavior immediately.
Poor Examples of Negative Consequences
Following are examples of weak negative consequences that can leave an employee feeling unsure of your intentions:
If you do not meet the performance objectives outlined in this disciplinary memo, you will be subject to serious discipline.
In the future, please don’t forget to lock the cash drawer at night before you leave the office.
Tony, you must stop your habitual lateness and assume responsibility for your actions from this point on. Otherwise, I will be forced to take further action against you.
The employee is to immediately increase her number of daily outbound collection calls. Otherwise, she will continue to fail to meet minimum performance benchmarks.
The obvious weakness in these examples comes from their ambiguous consequences. Appeals to assume responsibility for one’s actions, generic terms such as “serious discipline,” and hollow threats of “further action” will be interpreted against you if you are challenged in court to define what you meant.
Properly Written Negative Consequences
Some employers use very specific time windows when doling out consequences, while others use a generic catchall phrase for almost all situations. There’s no right or wrong answer in these instances: It’s simply a matter of your company’s philosophy, culture, union status, and the employment laws of your state. Generally speaking, I recommend the following phrase in the Negative Consequences section of the disciplinary warning template:
Failure to demonstrate immediate and sustained improvement may result in further disciplinary action, up to and including dismissal.
The reasons for this are simple:
It buys you the most discretion possible.
“Further disciplinary action up to and including dismissal” certainly places the employee on notice that his job may be in serious jeopardy of being lost, which fulfills your due process obligations.
“Immediate and sustained improvement” is a simple enough phrase, indicating that the turnaround can’t just be for thirty or sixty days. In short, you retain the discretion to determine what’s considered “immediate” and “sustained” and what level of discipline should follow if there is a repeat occurrence of the violation or infraction.
Most important, judges and arbitrators recognize this common language, and the majority of employment defense lawyers (i.e., those who represent companies like yours and mine) recommend this catchall phrase in most disciplinary situations, especially those involving at-will workers.
Active Time Windows May Also Be Used to Clearly Describe Negative Consequences
In addition to (or instead of) the catchall phrase, active time windows (requiring, for example, thirty, sixty, and ninety-day “stay clean” periods) may be used in the Negative Consequences section of your write-up template. Again, this may be a matter of style, culture, or your senior management team’s philosophy about what progressive discipline is meant to do and how it is to be used.
Keeping that in mind, there are certain times and circumstances where active time windows may be preferable:
In union environments where collective bargaining agreements tend to spell out specific provisions and time frames that govern its members’ work schedules, seniority rights, and grievance procedures, specific disciplinary time windows may be the norm.
In high-risk situations where you may be terminating someone in multiple protected classes or protected activities, time-specific windows may be a more suitable alternative. In such cases, the clearer the notice is in terms of what the problem is, how the individual must correct it, and by when, the better. Your written message might read: “The failure to sell 14 widget systems by March 15, 2017 will result in your termination at that time.”
Is there a caveat to be aware of when employing active time windows? Sure: Don’t allow your documentation to appear to serve as a guaranteed employment period for the duration of the disciplinary time window. In other words, use the phrase “if at any time within” in the documentation itself. For example, your language might read: If at any time within the next sixty days you fail to . . . , further disciplinary action up to and including dismissal may result.” This will make it clear to employees that they’re not guaranteed sixty days of work before they can be terminated.
Let’s look more specifically at disciplinary time windows. The length of the active time window depends on the nature of the offense and on how long it takes an employee to complete a full cycle of work or to show concrete results:
Thirty days. To closely monitor a poor performer’s work, use a short window such as thirty days. If the individual is having difficulty performing the essential functions of the job, then that should be enough time to observe results.
Example of a well-written verbal warning:
I know from your past performance that you are capable of executing all aspects of the clerical specialist position. However, your failure to process incoming records over the past three weeks is unacceptable. If at any time in the next thirty days you fail to meet the performance standards outlined in the disciplinary memo, further discipline up to and including dismissal may occur.
Sixty days. Salespeople in many professions who aren’t cutting the mustard typically get sixty-day windows. It takes about that long to make a sale, close the deal, and wait for the receivables to be paid.1
Example of a well-written written warning:
You are currently not meeting our company’s sales production standards. If you fail to meet established production benchmarks at any time within the next sixty days, you may be placed on a sixty-day final written warning. If you fail to meet sales production standards in that sixty-day final written warning period, you may be dismissed.
Ninety days. To keep employees “clean” for the longest period of time (for example, with tardiness and absenteeism problems), use a ninety-day window. Remember, you’re not married to the employee for a guaranteed ninety days; if anything goes wrong within those ninety days, you can automatically move to the next step of discipline. It’s just easier for employees to remain tardiness-free for thirty days than it is for ninety days, so why not hold them to a higher standard?
Example of a well-written final written warning:
You are now being placed on a final ninety-day warning. If at any time within this ninety-day period you incur two more incidents2 of unscheduled absence, you may be immediately dismissed.
Six months. It’s also not uncommon for middle and senior managers to be placed on probationary notice for six months because that tends to be a reasonable amount of time to measure performance that requires discretion and judgment.
Example of a well-written final written warning:
The current level of sales in your Western U.S. region is not acceptable. The next six months will consequently serve as a probationary period for you. If you do not meet the production goals and specific benchmark measurements outlined in this memo at any time within that period, you may be dismissed.
Such windows usually cannot be much longer than 180 days because courts or arbitrators may rule that the “stay clean” period was onerous. For example, a warning that “one more unexcused absence in the next year will result in immediate dismissal” may allow you to terminate an employee for cause. However, it’s likely that an arbitrator would rule that your active window was unreasonable because it was simply too long. And voilà—your decision to terminate may be reversed, or you may risk exposing your company to unwanted litigation.
Consequences Without Time Limits
There is an important exception, however. If an employee is disciplined for egregious actions such as sexually or verbally harassing a coworker, sleeping on the job, attempting to undermine a supervisor’s authority, or demonstrating gross negligence in job performance, then your Consequences section may simply read:
We are not terminating you at this time. We are, instead, giving you another chance. However, if you ever again engage in conduct with a supervisor, coworker, or vendor that could be considered hostile or offensive, you will be immediately discharged.
No time frame is necessary because the employee is given fair warning that any further demonstrations of egregious misconduct will be met with immediate dismissal.
Following are additional samples of well-written negative consequences that you’ll see outlined in this book:
Verbal warning:
If at any time within the next thirty days you fail to meet departmental performance expectations or any other standards of performance and conduct, disciplinary action up to and including termination may occur.
You have violated the terms of your verbal warning issued last month. You are consequently being given this formal written disciplinary warning. If at any time within the next ninety days you fail to meet production standards, you may be placed on a ninety-day final written warning. Failure to meet established production guidelines at any time during that ninety-day final written warning period may result in your dismissal.
Final written warning:
You are now being placed on a sixty-day final written warning. If your incoming call volume, scheduled client appointments, and/or recorded loans do not meet company production standards or if you fail to demonstrate specific knowledge of our bank’s loan programs when speaking with borrowers at any time within this period, you may be discharged.
Combination final written warning and written warning for multiple transgressions:
Because of your flagrant misuse of company property, if you make one more outbound, nonemergency personal phone call at any time within the next ninety days, you may be immediately dismissed.
In addition, if at any time within the next ninety days you fail to meet any established departmental productivity standards, you may be placed in final written warning status. If you then fail to meet production quotas or any other performance and conduct standards while in that ninety-day final written warning period, you may be dismissed.
Protect yourself from being locked into any one particular transgression by employing the generic phrase “or any other performance and conduct standards.” That’s the catchall equivalent of “other duties as assigned” in a job description. You’re always better off buying yourself the most flexibility and discretion possible.
Extending a New Hire’s Probationary Period
As a general rule, workers in their probationary (better referred to as introductory) periods should generally be given at least one documented warning before they are discharged. (However, a collective bargaining agreement may override this caution if it clearly states that a probationary employee is not entitled to progressive discipline.) New employees who are discharged while still on probation have the right to seek legal counsel for wrongful termination. The question is whether a plaintiff’s attorney will see enough merit in the case to bring a cause of action against the plaintiff’s former company. Written proof that the plaintiff was warned may be enough to persuade an attorney to look elsewhere for more favorable cases.
A new employee on the job for ten days has a long way to go before the end of a ninety-day probationary threshold. In that case, if the individual appears to be unable or unwilling to meet the minimum performance expectations of the job, then the Negative Consequences section of your written disciplinary memo should state:
If at any time throughout the remainder of your introductory period you fail to . . . or to meet any other standards of performance and conduct, you may be discharged.
However, what if the employee is eighty days into a ninety-day probationary period? In that case, there are only ten days until her introductory period is over, and that probably won’t be enough time for you to evaluate her performance objectively. Therefore, it’s best to extend the introductory period as follows:
Your initial introductory period will be extended from ninety to one hundred and twenty days (through November 25). If at any time within this introductory period, you address a manager, coworker, or vendor in an argumentative or disrespectful manner, you may be immediately dismissed.
As a rule of thumb, you can extend initial probationary time frames by roughly one-half to one-third of the original period. For example:
Thirty-day probationary periods can be extended by two weeks.
Sixty-day probationary periods can be extended by an additional thirty days.
Ninety-day probationary periods can be extended by thirty days.
One hundred eighty–day probationary periods can be extended by sixty days, although this is less common since the six-month window is already so long.
Buy yourself that extra time whenever you feel unsure about a new hire’s long-term prospects with your company.3
Scheduled Review Dates
Performance-related issues should always receive a timely follow-up. It’s as easy as jotting down a date on your calendar. Besides, when an employee knows that he’ll be held accountable on that day of reckoning, then preparing to meet your expectations becomes all the more important. This is a chance to add positive feedback to a difficult situation, and the opportunity shouldn’t be overlooked.
Performance-related transgressions, including those involving sales production, customer service follow-through, and interactions with coworkers, necessarily deserve follow-up. By observing and rewarding performance achievements, you’ll provide poorer performers with the structure, feedback, and direction they need in order to perform at a higher level.
On the other hand, it isn’t typically necessary to meet thirty, sixty, or ninety days out regarding a conduct problem or an absenteeism issue. Why not? Because the absence of repeated behaviors is proof enough that the warning has been heeded. For example, if the employee was disciplined for insubordination, violation of company policies regarding sexual harassment, or improper documentation of company records, then he won’t need to have a reminder meeting to verify that he’s not harassing anyone anymore. Simply stated, you shouldn’t have to readdress unacceptable conduct issues because it can appear to add salt to the wound.
One more caveat about performance follow-ups. Documenting that you are scheduling a meeting with the employee three months in advance certainly puts an added burden on you to keep the meeting. If you travel a lot or have difficulty keeping regularly scheduled meetings, skip this step. It will look a lot worse if you fail to keep your promise because it’s demoralizing for the employee, who will reason that you’re quick to find fault but slow to give warranted praise. It can also be looked down upon by an arbitrator, who may reason that you’re inconsistent in your follow-through. After all, our goal in this process is to shift responsibility to the employee—not to find ways of shifting the responsibility back to management!
The Employee Rebuttal
We mentioned earlier that allowing the employee to defend herself is often a key concept that is seriously lacking in workplace due process. The day in court principle says that people need to feel that they are being objectively heard, not unilaterally prejudged. After all, an employee may not like being disciplined, but if she feels it’s fair, she’ll be able to come to terms with it over time. If she feels that the whole thing was a predetermined setup, then feelings of anger, victimization, and revenge will likely remain.
Before discipline is meted out, it makes most sense to meet with the employee to discuss your findings and to learn of any mitigating circumstances. Of course, if a clear company policy like “five tardies equals a verbal correction” is breached, and you have a “no fault” attendance control system, then meeting with the employee in advance is not required. It still is recommended, though, since meeting in person before dispensing discipline gives you and your staff member a chance to talk about improving performance. When the discipline comes, it won’t be a shock because you will already have discussed it.
Meeting in advance to discuss your findings regarding an employee’s transgression may not lead to agreement, however. Once you’ve determined that discipline is appropriate, explain to your subordinate the reasons for your findings. Inform the employee as well that there is a formal response mechanism on the write-up that he can use to provide his side of the story.
This rebuttal section of the write-up allows the employee the opportunity to set the record straight and provide a different perspective on the supervisor’s allegations. Although it doesn’t change your findings, it certainly adds critical balance. And that, above all else, makes things fairer by establishing a more even playing field. Disciplinary documents that don’t allow room for the employee to rebut invite resentment and disenchantment. Encourage feedback at all stages of the communications process—formal or otherwise.
Note that there is a signature line in the Rebuttal section of the write-up template. Some employees may refuse to sign a disciplinary warning in the Acknowledgment section, fearing that by signing, they are agreeing with the supervisor’s allegations. When that is the case, encourage the employee to write a rebuttal and sign her name to the rebuttal. Failure to sign in the Acknowledgment section in no way weakens your case; signing in the Rebuttal section serves the same purpose in terms of proving the employee’s receipt of the document.
The Employee Acknowledgment
The Employee Acknowledgment section is critical but unfortunately missing from most disciplinary documents. Asserting your company’s at-will employment status, as discussed in Chapter 1, will go a long way toward protecting your company from third-party legal challenges.
Bear in mind, however, that this clause should be struck from the template (1) if your state does recognize an employment-at-will relationship or (2) when disciplining union employees. Unionized workers are governed by collective bargaining agreements and are not employed at will because they cannot be discharged “for any reason or no reason at all.”
The Employee Acknowledgment
I understand that XYZ Company is an at-will employer, meaning that my employment has no specified term and that the employment relationship may be terminated any time at the will of either party on notice to the other. I also realize that XYZ is opting to provide me with corrective action measures and can terminate such corrective measures at any time, solely at its own discretion, and that the use of progressive discipline will not change my at-will employment status.
I have received a copy of this notification. It has been discussed with me, and I have been advised to take time to consider it before I sign it. I have freely chosen to agree to it, and I accept full responsibility for my actions. By signing this, I commit to following the company’s standards of performance and conduct.
Please note that in the 101 write-ups in this book, I have eliminated the Employee Acknowledgment in order to save space, because the same wording is used in almost every case. When the language in the Employee Acknowledgment section changes (which occurs more frequently in final written warnings), a special note has been added to the end of the sample in the book. However, the online link contains all 101 full write-up samples, including this Employee Acknowledgment section, so please refer to the online version for the full documentation in each scenario.
Personal Commitment Agreement
The personal commitment agreement can take on various forms. It places the burden for improvement squarely on the employee’s shoulders, and that’s why it’s saved for last. Most disciplinary actions simply end with the statement: “I have received a copy of this notification.” The employee is then to sign the document without committing herself one way or the other. Her signature confirms nothing more than the fact that she received a copy of the disciplinary notice.
Now it’s time to reinvent that standard line in light of corporate America’s changing needs. Even at the earliest stages of discipline, it’s critical to confirm both orally and in writing that the employee assumes responsibility for success or failure on the job. The most effective way to end a coaching session or disciplinary meeting is to gain an oral commitment from the employee like this: “Janet, I’d like a commitment from you that we won’t have to discuss this issue again and that you’ll assume responsibility for the outcome of all this. Will you make that commitment to me?”
Similarly, if you want to make the personal assumption of responsibility stronger on the written document, you can add the statement:
In addition, I accept full responsibility for my actions and commit to following all company standards of performance and conduct.
or
I understand that this is my last chance. If I fail to achieve the goals agreed to in this document, I will resign or be terminated for cause.4
or
I understand that my position is now in serious jeopardy of being lost and that I must immediately make substantial improvements in my performance in order to remain employed.
This sends the undeniable message that you are holding the employee accountable for his own success and that you are serious about your intentions. It also may clearly indicate that the employee’s position is in jeopardy.
Although it may sound harsh, this additional language is unequivocal and incontestable in its intent. At the final stages of discipline, this clarity will work only in your favor.5 Use this language liberally in final written warnings to prove your intentions of imparting to the employee how serious the problem has become.
Signature Requirements
When the meeting is concluding and the various issues outlined in this write-up have been discussed with the employee, he may do one of four things: (1) Sign the document in the Employee Acknowledgment section, (2) sign it in the Employee Rebuttal section along with his version of the events, (3) refuse to sign anything, or (4) ask for time to consider and reread it before signing it. All options are acceptable.
In the ideal scenario, the individual signs the Employee Acknowledgment. That in effect shows agreement with your findings and the course of action you’ve outlined. If, on the other hand, the employee wishes to write a rebuttal and sign it in the Employee Rebuttal section, that’s absolutely acceptable as well. The purpose of progressive discipline is to communicate problem issues. Problem issues, by nature, have two sides, and there is neither a guarantee nor a necessity that the two sides see eye to eye. What is critical is the documentation of the event—not necessarily the agreement.
If the employee refuses to sign the document at all at the time of the meeting, encourage him to take the document home, reread it, and formulate a rebuttal. The obvious benefit to the employee is that he has a chance to provide his side of the story on paper, and this is obviously better than remaining totally silent. If the employee still refuses to sign the document within the next few days, you should indicate that in the signature area of the write-up by writing, “Employee refused to sign. Notified the employee that these are our findings of what occurred and that she will be expected to meet the standards of performance and conduct outlined.”
Witness Acknowledgment
In addition, call a witness (preferably another supervisor or member of your company’s management team) into the room and state that the employee has refused to sign the write-up or to rebut it. The witness should sign the document with a clear understanding that she is simply attesting to the fact that she is aware that the employee was given the write-up and has elected not to sign it. Witnesses need not be apprised of all the circumstances surrounding the disciplinary action; they must, however, be in the room with the employee present, and they must receive verbal instructions to sign the document in the employee’s place. Witness acknowledgment will then be complete, and the employee will not be able to claim later that she never received the document.
The matter can be concluded by providing the employee with a copy of the disciplinary memo, posting the original to the personnel file, and then distributing any other copies as appropriate.
1 This is true of mortgage bankers and other account executives in the financial services arena. Of course, other types of sales may be measured in longer cycles than sixty days. This will have to be dictated by your company’s line of business and performance expectations.
2 An incident is not necessarily one day; rather, it is typically defined as a continuous period of time related to one particular illness or injury.
3 Many organizations routinely provide performance evaluations at the conclusion of new hires’ probationary periods to ensure that performance and conduct are acceptable before the worker attains “regular” employment status.
4 This particular phraseology is recommended by Lee Paterson, senior partner and labor law expert at the Los Angeles office of Sonnenschein, Nath, and Rosenthal.
5 Be advised, however, that this language will not eliminate an employee’s right to challenge your decision if you terminate. For example, the employee will still have a right to prove in court that she was a victim of wrongful discharge or other unlawful conduct.