March 4 Tip of the Week

“Document, Document, Document”

One of the most frustrating experiences for human resources professionals is addressing a supervisor who wants to fire an employee for a slew of offenses, none of which have been documented.  Supervisors, although they mean well, often avoid addressing employee behavior until it is so egregious that they can’t stand it and they want the employee fired “immediately!”  Unfortunately, many supervisors, in a misguided attempt to help employees, fail to document all of the incidents of poor performance and bad behavior that led up to the demand for the employee’s immediate dismissal.  This makes it much more difficult to end the employment relationship.  Some supervisors, in addition to failing to document incidents of employee misconduct, also fail to note that there are any issues with the employee in the employee’s performance evaluations making it even more difficult to justify terminating an employee. 

            While most states recognize the employment at will doctrine, which basically states the employees and employers can terminate the employment relationship at any time and for any reason or no reason at all, there are some exceptions to this rule.  And, as with many other labor and employment law concepts, those exception place a larger burden on the employer to defend the decision to terminate the employment relationship.  Employers cannot terminate an employee for reasons that are illegal, such as discrimination or in retaliation for whistleblowing or complaining about job conditions, or for reasons that violate public policy, such as an employee who has filed a workers’ compensation claim.  When the employer has failed to document the reasons for the decision to terminate an employee, it is easy for the employee or the employee’s attorney to assert that the employee was fired for any unlawful reason.  That is why it is so important to document an employee’s misconduct and poor performance. 

            One of the most effective means of documentation is the counseling memo.  A counseling memo can and should be given to an employee to address inappropriate behavior in the workplace, poor attendance, or other workplace misconduct.  To be effective, a counseling memo should be timely – meaning that it should be given to the employee as soon as possible after the misconduct occurred.  Before the counseling memo is delivered, the supervisor should meet with the employee to discuss expectations and how the employee has failed to meet those expectations.  Both the meeting and the counseling memo should be objective, respectful and direct.  The counseling memo should then reflect what was discussed in the counseling session.  When writing the counseling memo, these guidelines should be followed:

  1. The memo should be addressed to the employee and the tone should be respectful and positive.
  2. Be concise and clear.
  3. The memo is a summary of your counseling session and should include the following

sections:

  1. A statement of the reason for the meeting and the date, time, and place of the meeting.
  2. A description of the issues or problems that led to the meeting.  It is important to be as complete as possible in describing the problem.
  3. The employee’s response to your concerns. This is important as it demonstrates to the employee that you were actually listening during the counseling session.
  4. The manner in which the employee is expected to improve performance.
  5. The expectations for the employee moving forward. 
  6. A description of any follow up activities for both the employee and the supervisor; this could include a performance improvement plan, regular check ins, additional training, etc.
  7. If appropriate, a referral of the employee to EAP to address possible underlying causes for the poor performance or misconduct.

The counseling memo should not include matters which were not discussed in the meeting and it should not be characterized as discipline or a penalty.  The tone of the counseling memo should be factual and objective.  You should avoid any personal attacks or inflammatory language in the counseling memo.  The purpose of the counseling memo, in addition to documenting poor behavior or performance, is to provide support and guidance to an employee to improve their job performance and to, hopefully, avoid the need to terminate the employee.  

            When issuing a counseling memo to an employee, the memo should reflect who will receive a copy of the counseling memo and whether the memo will be placed in the employee’s personnel file.  The memo should not be widely distributed. Generally, only individuals who absolutely need to know would be copied. Supervisors should be reminded of the importance of maintaining confidentiality in personnel matters and should not be discussing employee performance issues with others in the department or organization. 

            By ensuring that all employee incidents of misconduct, poor attendance, and poor job performance are documented and addressed with the employee, an employer is a much better position to justify the decision to terminate an employee.  Further, proper counseling and documentation can make an employee feel valued and heard within an organization and may help to turn a poor or marginal employee into an effective and dedicated employee.  myHRcounsel can assist you in preparing for employee counseling sessions and in writing effective counseling memos.