Practice Areas

Documenting Employee Misconduct and Protecting the Company!

April 2012

By: Nancy E. Joerg, Esq.

Employers are busy people, and most don't have the time to record (i.e., document) all the workplace incidents of employee misconduct which arise.

However, when the employer finally decides to fire the problematic employee, the employer often regrets that there is no "paper trail" of all the instances of deficient on-the-job conduct.

Proper documentation of disciplinary action by the employer is extremely important to protect the company. It establishes a written and detailed record that can be helpful to the employer in various ways - such as determining whether an employee has been given prior notice regarding a policy, rule or procedure and whether the employee has received disciplinary action and in what form. The employer can then determine the appropriate form of disciplinary action for continuing offenses.

Also, solid documentation provides the essential "paper trail" when an employer is forced to respond legally to a claim of discrimination by an employee or former employee.

Here are some good tips for effective documentation:

1. Document every disciplinary event and counseling session promptly, while events are fresh in mind. Handwritten dated notes are acceptable. Write as complete a story as possible, providing exact dates, times and places and conversations. Make sure all notes, emails, memos, etc. indicate who the author is and the date when written.

2. Record job-related standards and behaviors, not subjective interpretations. For example, instead of noting such behavior as "chronic absenteeism," record facts... "absent 4 days during December 2011." Remember that speculation such as "He's probably been drinking again" should not be included in the file.

3. Focus on major issues related to performance and/or conduct and ignore very minor issues.

4. Be sure to record the employee's side of the story during counseling or discipline sessions. This will document that the employee obtained a proper hearing and will ensure that the employee's account does not change later.

5. In "final warnings" and other major disciplinary actions, make sure the employee reads and signs or initials the written record of the infraction and disciplinary action taken. If possible, have a second managerial or supervisory representative present at the meeting with the employee, and have that person sign and date as well.

6. Avoid documentation that gives the appearance of "building a case" against an employee. It is best to let the record reflect an honest attempt to salvage the troubled employee. Otherwise, the employer may be propelled into court by an employee claiming "retaliatory discharge" or a "predetermined decision to fire."

7. Be careful to record similar violations in the same terminology. The employer may need to show other employees were disciplined for similar offenses in a like manner. For example, when two employees are disciplined for refusing to perform a job, it would be unwise to describe the one employee's behavior as "unsatisfactory performance" and the other employee's action as "insubordination." In this instance, it would be best to record "refused to perform" for both cases.

8. When recording misconduct, indicate (by name and job title) any witnesses to the bad behavior. Note in detail what the witness saw or heard.

Sound documentation of employee misconduct will ideally promote fairness and consistency in the workplace. It is also very important in protecting the company from discrimination lawsuits of all kinds.

Questions? Call Attorney Nancy E. Joerg of Wessels Sherman's St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com .