101 Sample Write-Ups for Documenting Employee Performance Problems: A Guide to Progressive Discipline & Termination / Edition 2

by Paul Falcone

Overview

There is perhaps no more dreaded managerial task than ­communicating with an employee about a disciplinary problem. But when performance problems become apparent, you can’t just ignore them. You need to deal with them head-on.

Not sure of the best way to handle a particular situation? Turn to 101 Sample Write-Ups for Documenting Employee Performance Problems: A Guide to Progressive Discipline & Termination. Now completely revised and updated, the book has been the trusted resource for managers for more than a decade.

Expertly written, the guidebook covers dozens of problems likely to occur in the workplace, from substandard work quality, absenteeism, and poor attitude to sexual harassment, insubordination, and more.

Among the new write-ups found in this edition of the highly popular reference guide are how to deal with such problems as:

• Politically incorrect behavior

• Lack of leadership or trust

• Failure to communicate upward and/or follow through

• Lack of teamwork

• Use of Internet pornography

• Managerial misconduct and retaliation

• Failure to disclose a conflict of interest or personal relationship

• Violation of intellectual property rights

This completely updated edition also includes an appendix on SOX requirements and samples of how to deal with intermittent FMLA abuse.

Because writing someone up doesn’t always result in a correction of the problem at hand, readers will also find creative alternatives to formal disciplinary warnings that will help turn around those flying “just below the radar.” There are 18 sample termination letters included.

Also inside: advice for tying progressive discipline to annual performance reviews; ways to avoid drafting documentation that could later be used against your company; summary dismissals; and much more.

The book isn’t merely a reference, but a resource that managers can turn to any time they need to generate a corrective action notice. All 101 samples in the book are easily accessible for viewing via the companion CD-ROM and can be downloaded and customized with minimal effort. Simply put, you’ll no longer have to guess at what verbiage you should include in a write-up. This one-of-a-kind guide helps managers handle any scenario fairly, constructively, and—most important—legally.

Paul Falcone is Vice President of Employee Relations at Time Warner Cable in Los Angeles and was formerly Vice President of Human Resources at Nickelodeon. He is the author of 2600 Phrases for Effective Performance Reviews, 101 Tough Conversations to Have with Employees, 96 Great Interview Questions to Ask Before You Hire, The Hiring and Firing Question and Answer Book, and Productive Performance Appraisals. Falcone is also a longtime contributor to HR Magazine and a nationally recognized speaker on hiring and performance management.

Product Details

ISBN-13:	9780814415467
Publisher:	AMACOM
Publication date:	03/24/2010
Edition description:	Second Edition
Pages:	400
Product dimensions:	8.50(w) x 10.90(h) x 1.10(d)
Age Range:	18 Years

About the Author

Paul Falcone is a human resources executive and the author of such best-selling titles as 2600 Phrases for Effective Performance Reviews, 101 Sample Write-Ups for Documenting Employee Performance Problems, and 96 Great Interview Questions to Ask Before You Hire. He is a regular contributor to HR Magazine and an instructor at the UCLA Extension School of Business and Management. He lives in Valencia, California.

Read an Excerpt

Chapter 1

Progressive Discipline and Its Legal Considerations

 

 

Documenting poor performance and progressive discipline is as much an

art as it is a science. Unfortunately, most human resources

professionals and line managers don’t have the time to study the nuances

of progressive discipline, workplace due process, summary dismissal,

discharge for cause, and the like. Even when that theory is mastered,

however, there remains the challenge of incorporating all those ideas

into a written memo that adequately documents subpar job performance or

workplace conduct.

So it’s not surprising that many managers avoid writing up employees

like the plague. And without a template to follow and samples to

emulate, it’s no wonder that many managers create memos that cannot

withstand legal scrutiny.

If the objective of any disciplinary system is to create and maintain a

productive and responsive workforce, then disciplinary actions, when

they occur, should focus on rehabilitating employees by deterring them

from repeating past problem behaviors. It is simply a fact of the modern

workplace that you as a manager are charged with this responsibility.

Terminated employees who are successful at winning wrongful discharge

claims, on the other hand, typically can prove that they were denied

“due process”—what we call progressive

discipline. They successfully argue, with the help of

their attorneys, that your company breached its de facto obligation of

“good faith and fair dealing” in managing its employees and in following

its own policies. So if you’ve ever scratched your head about losing a

case to an employee who flagrantly disregarded work responsibilities,

it’s probably because an arbitrator concluded that due process was

denied.

In other words, if the “step formula” outlined in your company’s

progressive discipline policy is violated, or if you fail to properly

notify an employee that her job is in jeopardy, you may end up on the

losing end of a wrongful termination suit. Ditto if you dole out

punishment (i.e., termination) that doesn’t appear to fit the offense.

In such cases, arbitrators will conclude that the misuse of your

managerial discretion warrants the substitution of their judgment for

yours in the handling of a specific worker. Frequently, that results in

a lesser penalty (such as reinstatement plus a written warning instead

of termination).

But what about your rights? Shouldn’t workers be held accountable for

their actions? Don’t you retain any discretion in determining who should

play on your team? After all, whose company is it? Well, don’t despair.

The program outlined in this book is aimed at giving those rights back

to you.

With the help of this system, here is how discharge hearings should play

out in the future: An arbitrator asks a former employee/plaintiff in a

wrongful discharge action, “I see that your former company offered you

an opportunity to take part in an EAP program. Did you contact the EAP?”

The former employee’s flat response is, “No.” The arbitrator then asks,

“I see that you were encouraged to fill out a section of this write-up

regarding your own performance improvement. It’s blank, though. Why is

that?” The apologetic response is, “Well, I guess I didn’t have time.”

The arbitrator continues: “I see. Hmmm. Your company paid to send you to

a one-day off-site training program on conflict resolution in the

workplace. Did you attend that workshop?” The employee responds, “Yes, I

did.” Finally, the arbitrator closes: “So you attended the workshop that

was paid for. Yet you did little else to invest in your own personal

improvement. And you signed a document showing that you agreed that if

you didn’t meet the conditions of the agreement, you would resign or be

terminated regardless of the reasons for your failure. . . . I see no

merit in your argument that you were denied due process or that your

organization failed to make reasonable attempts to rehabilitate you.

This case is dismissed.”

You’ll immediately notice how the burden was shifted to the employee in

terms of proving that he made a good-faith effort to become a better

worker. To make this fundamental paradigm shift occur, however, you have

to provide the employee with resources he can use to improve himself:

coaching and commitment, training, and material resources. And that’s a

win for both sides, since you, the employer, focus on helping your

workers and they, in turn, are charged with accepting your invitations

to improve.

It all begins with due process—your efforts to ensure that the employee

understands what the problem is, what she needs to do correct the

problem, what will happen if she doesn’t, and how much time she has to

demonstrate improvement.

The Elements of Due Process

A legal theory called the “job as property doctrine” states that

employment is a fundamental right of American workers and that the loss

of employment has such a serious impact on a person’s life that

individuals should not lose their jobs without the protection of due

process, as afforded under the Fourteenth Amendment to the Constitution.1

Affording due process means recognizing the employee’s right to be

informed of unsatisfactory performance and to have a chance to defend

himself and improve before an adverse employment action (such as

discharge) is taken.

This “property right” protection places on management an obligation to

deal in good faith with employees and to take corrective action measures

based on just cause (i.e., good reason). This just cause requirement, in

turn, mandates that businesses take corrective action measures only for

clear, compelling, and justifiable reasons.

But what exactly are the elements of due process?

First, the employee must understand your expectations and the

consequences of failing to meet your performance standards. If a

write-up merely documents a performance problem without pointing to the

consequences of failure to improve, the write-up will lack the “teeth”

necessary to meet due process guidelines.

Second, you must be consistent in your application of your own rules.

Workers have the right to consistent and predictable employer responses

when a rule is violated. In other words, problems cannot be corrected on

an ad hoc basis without the employer’s being perceived as arbitrary,

unreasonable, or even discriminatory. Bear in mind as well that,

generally speaking, practice trumps policy. In other words, regardless

of what your handbook or policy and procedure manual says, your past

practices will be scrutinized for consistency.

In addition, failure to follow through on threatened consequences

damages the credibility of your disciplinary system and sets an

unintended precedent: If Employee A, for example, was forgiven for

making certain mistakes, Employees B through Z may arguably have to be

forgiven for making those same or similar errors.

Third, the discipline must be appropriate for the offense. Occasional

poor performance or a minor transgression (known as a de

minimis infraction) is certainly actionable but probably

not cause for termination. An employee’s performance track record and

prior disciplinary history must certainly be taken into account.

Fourth, the employee should be given an opportunity to respond.

Administering discipline without allowing employees to give their side

of the story is begging for trouble. Unfortunately, of all the elements

of due process that should be incorporated into any write-up blueprint,

this self-defense principle is the one that is most often lacking.

Fifth, you need to allow the employee a reasonable period of time to

improve her performance. Otherwise, your disciplinary actions will

appear to be an artificial excuse to get the employee out of the

organization. We’ll talk more about acceptable probationary time frames

in Chapter 4.

Table of Contents

CONTENTS

Acknowledgments viii

Introduction 1

Part I: Mastering the Write-Up Tool 5

1. Progressive Discipline and Its Legal Considerations 7

2. Disciplinary Levels, Subjects, and Prior Notifications 17

3. Incident Descriptions and Performance Improvement Plans 33

4. Consequences, Rebuttals, and Employee Acknowledgments 43

5. Commonly Asked Questions and Practical Answers to Tricky Employee Relations Issues 55

6. About the Sample Write-Ups 75

101 Sample Write-Ups

Part II: Disciplining the Probationary Employee 79

#1, 2 Disciplining the Probationary Employee 81

#3 Disciplining the Probationary Employee: Extending the Length of Probation 87

#4 Performance Problems That Arise Right After the New Hire’s Probationary Period Ends 90

Part III: Policy and Procedure Violations 93

#5, 6 Failure to Follow Departmental Policies and Procedures 95

#7 Excessive Personal Telephone Calls 101

#8 Software Piracy (Unauthorized Installation) 104

#9 Unauthorized Use of Company Equipment, Time, Materials, or Facilities 107

#10 Unauthorized Removal of Company Files 110

#11 Inappropriate Downloading/Violation of Intellectual Property Rights 113

#12 Leaving the Work Site During a Regularly Scheduled Shift 116

#13 Disclosure of Confidential Information About the Company or Its Customers 119

#14 Failure to Follow Company Dress Code 122

#15 Lack of Cleanliness and Substandard Personal Hygiene 125

#16 Smoking on Company Grounds 128

#17 E-Mail Misuse 131

#18 Off-Duty Conduct and “Moonlighting” 135

#19 Failure to Disclose a Conflict of Interest/Personal Relationship (Code of Conduct Violation) 138

Part IV: Performance Transgressions 143

#20–26 Substandard Work Performance 145

#27 Substandard Customer Service 169

#28, 29 Safety Infractions 172

#30 Lack of Sales Production 179

#31 Unwillingness to Perform Properly Assigned Work 182

#32 Recurring Negligence and Thoughtlessness 185

#33 Lack of Teamwork 188

#34 Lack of Managerial Leadership and Lack of Trust 192

#35 Failure to Follow Through/“Dropping the Ball” 196

#36 Improper Cash Handling 200

#37 Acts Resulting in Loss to the Employer 203

#38 Slow or Inefficient Production 206

#39 Failure to Observe Working Schedule, Including Rest and Lunch Periods 209

#40 Sleeping on the Job 212

#41 Failure to Learn New Material in Training 215

#42 High Error Factor and Scrap Rate 218

#43 Falsification of Employer Records 221

#44, 45 Lack of Communication with Supervisor 224

#46 Failure to Communicate Upward 230

Part V: Behavior and Conduct Infractions 233

#47 Profane Language in the Workplace and Insubordination 235

#48 Poor “Attitude” 239

#49, 50 Insubordination and Substandard Work Performance 242

#51 Misconduct, Fighting, and Horseplay 248

#52–55 Sexual Harassment 251

#56 Finding Pornography on an Employee’s Computer Hard Drive 263

#57 Politically Incorrect Behavior in the Workplace 266

#58 Creating an Intimidating Work Environment 270

#59 Managerial Misconduct 273

#60 Veiled or Direct Threats of Violence 276

#61 –63 Antagonistic Behavior Toward a Coworker 279

#64 Managerial Retaliation/Group Complaint About a Supervisor 288

#65 Managerial Retaliation 292

#66–68 Intoxication During Work Hours 296

#69 Drug-Related Impairment During Work Hours 308

#70 Character Assassination, Defamation 312

#71 Gossip- and Rumormongering 315

#72 Blamers and Excuse-Makers 318

Part VI: Absenteeism and Tardiness 321

#73 Excessive, Unscheduled Absence: “No Fault” System 323

#74, 75 Excessive, Unscheduled Absence 326

#76, 77 Pattern of Excessive, Unscheduled Absence 332

#78 Excessive, Unscheduled Absence: “Excuse-Based” System 340

#79–81 Excessive Tardiness 343

#82 FMLA Abuse: Failure to Provide Appropriate Medical Documentation 352

#83 FMLA Abuse: Failure to Follow the Terms of the Medical Certification 356

Part VII: Termination Notices 361

#84 Terminating the Probationary Employee 363

#85, 86 Discharge for Cause: Substandard Performance 364

#87 Employee Fails to Report to Work on Her First Day; The Company Rescinds Its Employment Offer 366

#88 Summary Discharge: Falsification of Company Records 367

#89 Summary Discharge: Time Card Fraud 368

#90 Summary Discharge: Possession, Sale, or Being Under the Influence of Alcohol or Illegal Substances 369

#91 Summary Discharge: Failure to Pass Certification Exam 370

#92 Summary Discharge: Misconduct at Company Holiday Party 371

#93 Summary Discharge: Threatening a Coworker with Bodily Harm 372

#94 Letter Confirming Acceptance of an Employee’s Verbal Resignation 373

#95 Summary Discharge: Acceptance of Gratuities 374

#96 Summary Discharge: Insubordination 375

#97 Secretarial Layoff: No Severance 376

#98 Director-Level Layoff Including Severance Package, Outplacement, and Appropriate Legal Release 377

#99, 100 Job Abandonment 380

#101 Summary Discharge: Credit Card Fraud 382

Appendix: The Sarbanes-Oxley Act of 2002, or “SOX” 383

Index 387

Editorial Reviews

Paul Falcone’s books are real and applicable to the everyday life of Human Resources. They are for the front-line managers on how to lead effectively.” –PeopleG2

From the Publisher