April 26, 2017
Employers are familiar with the importance of documenting performance problems. Performance documentation is a critical part of managing employees, providing feedback, and creating a record for promotion or position changes, changes in pay, schedule changes, and layoffs. An accurate record of performance problems greatly assists employers (and their counsel) in defending decisions to take disciplinary action based on poor performance when that employee later complains that a decision was unfair, illegal, or discriminatory. However, an employer’s human resources representative is not usually on the front lines of this task. Busy supervisors are the ones typically responsible for documenting employee performance issues and providing feedback.
Often, employers struggle to get supervisors to properly document employee performance. This can be for a variety of reasons, including insufficient information, unhelpful or subjective analysis or commentary, or failure to follow up. When an employer is training and managing a team of supervisors with various proficiencies, equipping these supervisors with a form to guide their counseling session and to document the meeting can be an effective tool. Employers may want to consider training supervisors on how to complete a specific employee counseling form to document performance concerns. These types of training meetings can also be used to remind your team of appropriate issues to bring to HR and to schedule follow-up meetings with employees in need of additional coaching.
It is wise to develop a disciplinary form that suits your company’s workforce and preferences.
An effective form typically includes: the names and titles of people attending the meeting; date of the meeting; nature of the incident or issue giving rise to discipline, including any witnesses; reference to handbook or other policies at issue; the type of disciplinary action taken (if any); the change required or goal to be achieved; the possible consequence for failure to improve or correct behavior; any prior discussions or warnings on the subject; and any progress meeting scheduled.
Employers may provide space for the employee to provide a statement as well. Finally, depending on your state law, it may be a good idea to remember to include an at-will disclaimer on the form. The form may also direct that copies go to the employee and to the employee's file.
Consider revising the form in conjunction with counsel before a particularly high-risk employee meeting. In that circumstance, the employer may want to meet with HR and an employment attorney to complete the form in advance of the meeting in situations where a legal concern such a discrimination complaint has been made. An employer may prefer to maintain two forms to use in different circumstances: an Employee Counseling Form that the employee signs and acknowledges the meeting; and a Record of Employee Counseling in which the supervisor or HR representative simply documents that a verbal communication took place that the employee does not review.
In sum, having a performance documenting and feedback system in place will help employers maintain accurate records for any legal issues that may arise but will also permit employers to better equip supervisors and managers to actively manage performance issues in the workplace. Developing a form to serve as a guide is just one tool employers can use to achieve this goal.
Our Insights are published as a service to clients and friends. They are intended to be informational and do not constitute legal advice regarding any specific situation.