By Mark Wiletsky

As a follow-up to a recent post, here is an article with tips for documenting employee performance issues.

Before terminating an employee, even in an at-will state such as Colorado, employers are well-advised to have good documentation in hand.  A solid “paper trail” documenting legitimate performance or behavioral issues is often your best weapon to prevent or quickly resolve opportunistic claims from poor performers and disgruntled employees.  Although documenting problems is not required by law, jurors expect to such evidence when faced with a claim that the employee was terminated for an unlawful reason.  There is no “one-size-fits-all” approach to documenting performance problems, but following a recipe will help to ensure that your documentation contains the key ingredients to ward off a claim. 

1.         Start with the facts.  When documenting performance or behavior problems, avoid ambiguous or subjective phrases and terms, such as saying the employee has a “bad attitude” or has behaved “inappropriately.”  Instead, be factual, specific, and give examples.  For example, rather than saying an employee has “repeatedly been late to work,” you could write: “John’s shift begins at 8:00 a.m.  However, on March 5, 21, and 28, 2012, John arrived at 8:10 a.m., 8:15 a.m. and 9:00 a.m., respectively.  John did not call his supervisor in advance to notify him that he would be late those days.  As a result of John’s tardiness, employees from the earlier shift had to stay late, causing the company to incur additional expenses, which it is trying to minimize.”  Also, replace labels (such as “bad attitude”) with a description of the actual conduct that is at issue, e.g., John has been inattentive during staff meetings, he failed to work with his teammates to complete deliverables on the X project, etc.  Lastly, avoid acronyms and highly technical jargon.  Make sure that a layperson could read the document and understand the problem.

2.         Add in the employee’s explanation.  After identifying the problem, recite the employee’s explanation for the problem, or confirm the employee admitted to the behavior.  For example: “When Michelle and I met with John on April 1 to discuss his tardiness, John admitted he had been late on the days noted above, but claimed that he had overslept or that road construction delayed him.”   Then state that those excuses are not legitimate and reiterate the expectation that the employee will adhere to the rule at issue.

3.         Throw in some history.  If the employee has had other problems recently, reference those issues.  Similarly, if you have had prior conversations with the employee about the conduct at issue, and that conduct is recurring, point out those past conversations: “This is not the first time John has had problems with tardiness.  We spoke about this issue on February 5, 2012, because he had arrived late to work two times in a two-week period, and I warned him that he needed to be sure to arrive on time and notify his supervisor if he was going to be late.”  But don’t go back too far into the past, and be sure that you are following any applicable collective bargaining agreement with respect to the time period during which past performance issues may be used against an employee.

4.         Lay out expectations.  Make sure the employee knows what you expect, and include a policy (or excerpt), if applicable.  A common sentence included in disciplinary memoranda is: “We expect immediate and sustained improvement.  If there are any further issues or problems, you will be subject to additional discipline, up to and including termination of employment.”

5.         Finish off with a signature.  Make sure the employee signs a document to confirm receipt.  Employees or their attorneys may claim that an unsigned document was created after the fact, or that the issue was never discussed with the employee.  If the employee refuses to sign the document, simply note the employee refused to sign, and consider sending a copy of the memo to the employee via e-mail with a note, such as: “John – here is a copy of the warning memo that we discussed a few minutes ago.”

Although there is no one “recipe” for successful documentation, following the steps outlined above should be a good start to ensure that you are appropriately documenting performance issues.