1. DOCUMENTING DISCIPLINE
Christina M. Jepson
April 25, 2013
Holiday Inn Salt Lake City Airport West
parsonsbehle.com
LORMAN EDUCATION SEMINAR

2. 2
 Why is it important to carefully and
accurately document discipline of
employees?

3. 3
 Employees can bring claims or lawsuits
because of discipline and terminations
 Discipline and terminations create risks
under the discrimination laws and other
employment laws

4. 4
Assessing Risk

5. 5
Specific Risks
 Employees may bring claims/lawsuits
– Protected class members under Title VII, ADEA, ADA
– Those who participate in protected proceedings
– EEOC and UALD charge filers
– Investigation participants
– Those who oppose allegedly discriminatory conduct
– Other complainants
– Investigation witnesses
– Those who exercise their rights
– Example: an employee who requests ADA accommodation

6. 6
Who is High Risk?
Any employee who
(1) Is in a protected class;
(2) Is in circumstances that suggest that he or she
may file a claim; and
(3) Is subject to discipline

7. 7
Managing the High-Risk Situation
 Properly document all actions taken
toward and interactions with the high-risk
employee
 Guard against careless communications
 Consult with counsel early about high-risk
situations to get guidance

8. 8
Documentation Techniques

9. 9
The documentation that is created can
show:
 That you did everything you were supposed to
do in furtherance of the employee‟s rights:
– ADA accommodation process
– Investigated and corrected promptly any claims of
discrimination or retaliation
 That your discipline and/or termination of the
employee were for legitimate business reasons
and not discriminatory:
– Employee was a bad performer

10. 10
Documentation Throughout Employment
 Agreements with employees
 Acknowledgements by employees
 Employee requests for accommodation
 Employer responses to accommodation
requests
 Complaints and investigations
 Employee performance issues
 Employee misconduct
 Discipline and termination decisions

11. 11
Documentation Throughout Employment
 Improved communication
 Uniformity in business decisions
 Lawsuit defense aides:
– Faded memories
– Credibility battles
– Binding admissions

12. 12
Documentation in High-Risk Settings
 All interactions with the employee
 All crucial steps taken by the employer
 All buy-ins/acknowledgements by the
employee

13. 13
Documenting Misconduct
 What is misconduct?
 What is proper discipline?
 Does consistency matter?
 What is proper documentation?

14. 14
Documenting Misconduct
Susan Supervisor observed an incident. Her proper signed
write-up might look like this:
“On 9/15/13, I, Susan Supervisor, saw a puddle of water on
the floor in the west service hall. I told Jacob Janitor of the
puddle, where it was, and to please clean it up immediately.
He said, „I‟m busy right now. I‟ll get to that when I get around
to it. If you need it sooner than then, you can $@&% well do it
yourself.‟ I verbally warned him that his response was
unacceptable, that his behavior would be noted in his file, and
that further disciplinary action might be taken. Jose Assistant
witnessed this exchange, and I asked him to write up a
statement.”

15. 15
Documenting Misconduct
Compare that with:
“There was something on the floor in the hall. I
told Jerry Jacob to take care of it. He mouthed
off and blew me off.”

16. 16
Documenting Misconduct
Ollie Jones told Susan Supervisor that he heard
Jacob Janitor was pushing and shoving others in
the hallway. Susan‟s proper signed write-up might
look like this:
“9/15/13: 2:15 p.m.: Ollie Jones came in and told
me he overheard from Wally Witness that Jacob
Janitor was pushing and shoving others in the
hallway.”

17. 17
Documenting Misconduct
Compare that with:
“Ollie Overhearer told me Jerry Janitor was
goofing off.”

18. 18
Documenting Misconduct
Susan‟s proper signed write-up (cont.):
“9/15/13, 2:20 p.m.: I called Wally Witness to my
office and asked about what he knew. He said
he saw Jacob Janitor push and shove Andy
Annoyance and Prickly Pete in the west service
hallway. Jacob was yelling and Andy and Pete
about spilled water. Andy fell down but got right
back up and did not appear to be hurt. I asked
Wally to write up a statement.”

19. 19
Documenting Misconduct
Compare that with:
“Wally Witness told me Jacob Janitor pushed
and shoved a couple other guys in the hallway.
Jacob was yelling about something. One of the
guys fell.”

20. 20
Documenting Misconduct
Susan‟s proper signed write-up (cont.):
“2:30: Called Jacob Janitor into my office. Asked him if
he was pushing and shoving others in the hallway. He
denied it. Told him I had a witness. Jacob then admitted
to yelling, pushing and shoving. Jacob admitted Andy
fell. Said he was mad because Andy and Pete had
intentionally spilled the water and a lot of other things
that day, and had gotten him in trouble with me. Had him
write up a statement and sign it. See attached. Told him
his behavior was unacceptable and the disciplinary
action would be taken.”

21. 21
Documenting Misconduct
Compare that with:
“Jacob Janitor denied everything but then
admitted it. Said he was mad because Andy and
Pete had gotten him in trouble with me. Told him
he shouldn‟t have acted that way.”

22. 22
Documenting Misconduct
Susan‟s proper signed write-up (cont.):
“9/15/13, 3:00 p.m.: Called Bill Boss to advise
him of situation and arrange time to meet to
discuss appropriate discipline.”

23. 23
Documenting Misconduct
Compare that with:
“Called Bill Boss.”

24. 24
Misconduct Documentation
 How does the misconduct documentation
help the employer avoid liability?
– Encourages adequate investigation
– Permits review
– Promotes uniformity
– Provides contemporaneous evidence of facts
for use in lawsuits

25. 25
Improvement Plans
 Can performance be improved?
– Usually
– Do the job requirements and the skill set
match?
– Where skills are lacking, can training fix it?

26. 26
Improvement Plans
 What are the keys to improvement?
– Clear communication of expectations
– Clear feedback on meeting expectations
– Playing to the employee‟s strengths
– Getting the employee to buy into the goals
– Getting the employee involved in creating the
solution

27. 27
Improvement Plans
 What if the plan doesn‟t work?
– Evaluate the communication dynamic
– Re-evaluate the job requirements and the skill
set
– Revise the plan, revise the job, change
supervision, or change the employee

28. 28
Improvement Plans
 What does proper documentation look like?
– Objective goals
– Detailed plan to meet goals
• Employee‟s part
• Supervisor‟s needed contribution
– Ways to measure improvement
– Timeframe for improvement
– Employee or joint creation

29. 29
Improvement Plans
 What does proper documentation look
like?
– Contains employee acknowledgements:
• Of the performance problem
• Of the employee‟s agreement to the plan
• Of the employee‟s knowledge that his failure to
perform may result in additional disciplinary action
– If acknowledgement is refused – document
that

30. 30
Improvement Plans
 What does proper documentation look
like?
– Contains disclaimer:
• Plan is not a contract
• Employer does not have to facilitate improvement
• Employee remains at-will and subject to
termination at any time

31. 31
Improvement Plans
 How does the improvement plan
documentation help the employer avoid
liability?
– Undermines employee‟s later claim in lawsuit that his
performance was not the reason for his termination
– Caveat: short-cutting improvement timeframes can
permit argument that protected class status caused
the short-cut and that had the full time been given, he
would have performed

32. 32
Documentation
 Is the form of the documentation magical?
 Where should you keep it?

33. 33
Handling the Termination

34. 34
Termination Documents
 Termination Procedures
 Termination Decision
 Termination Communication
 Separation Agreements

35. 35
Termination Procedures Documentation
 You may have some policies impacting your ability to
discipline or terminate. Check before you start creating
documentation. If you aren‟t, have good and well-
documented reasons for the departure. Examples of
existing documents that may impact your termination
process include:
– Employment contract provisions
– Progressive discipline policies
– Grievance and decision review policies
– HR/Legal oversight approval policies

36. 36
Termination Decision Documentation
 Written before the termination decision is communicated
to the employee
 Explains the reason for the decision
 Provides enough history to understand and evaluate the
decision from a legitimate business reason perspective
 References and has attached backup documentation for
the decision
 In complicated or risky situations, should be written only
after discussions with counsel and at request of counsel
or in a communication to counsel to permit non-
discoverable revisions

37. 37
Termination Communication
Documentation
 Clearly communicates to the employee that he
or she has been terminated, effective when, and
– May include the reasons
– Should never include false reasons
– Should never include only some reasons when other
reasons are also present
– In complicated or risky situations, should be written
only after discussions with counsel and at request of
counsel or in a communication to counsel to permit
non-discoverable revisions

38. 38
Common Mistakes

39. 39
Common Mistakes in Disciplining
 Creating arguments that “employment at-will”
was changed
 Vague communications of the expectations and
consequences going forward
 Inconsistent discipline for similar infractions
across the company
 Inappropriately light discipline
 Bringing unrelated or irrelevant issues into the
documentation

40. 40
Common Mistakes in Terminating
 Terminating without having exhausted the ADA reasonable
accommodation process
 Termination for retaliatory reasons (known to the decision
maker but not to HR)
 Overlooking procedural requirements
 Bringing unrelated or irrelevant issues into the documentation
 Sugar-coating or leaving out some reasons for termination
 Getting HR or counsel involved too late – after a bad decision
has been made or bad documentation has been created

41. 41
Avoiding Lawsuits

42. 42
Separation Agreements
 What are they?
 Why have them?
 What consideration must the employer
give in exchange for a release?
 What can be released?

43. 43
Avoiding Lawsuits
 Avoid discrimination and retaliation
 Create an atmosphere of fairness
 Manage employee expectations - avoid
surprises
 Use severance payments to buy releases
of claims

44. 44
Releases of Claims
 Don‟t pay severance without obtaining a release
 Make sure your release is well drafted, complies with the
law, and protects you to the fullest extent possible
 Understand the requirements for releasing age
discrimination claims. Know what Age Discrimination
releases (employees 40 y.o. +):
– Must use plain language
– Must give consideration beyond anything employee is
already entitled to
– Must advise employee to consult an attorney

45. 45
Releases of Claims
 Don‟t pay severance without obtaining a release
 Make sure your release is well drafted, complies
with the law, and protects you to the fullest
extent possible
 Understand and comply with the requirements
for releasing age discrimination claims
 Get legal advice as soon as you know a group
termination (reduction in force) is on the horizon

46. 46
Age Discrimination Releases
 Age Discrimination releases (40 y.o. +):
– Must use plain language
– Must give consideration beyond anything
employee is already entitled to
– Must advise employee to consult an attorney

47. 47
Age Discrimination Releases
 If the termination is of one person:
– Must give him/her 21 days to consider the
release, and 7 days to revoke the agreement
– The 7 day period cannot be shortened, even
by agreement

48. 48
Age Discrimination Releases
 If the termination is of a group of people:
– Must give the employees 45 days to consider
the release, and 7 days to revoke their
agreement
– The 7 day period cannot be shortened, even
by agreement
– Must include a disclosure containing specific
additional information about how the firing
decision was made and who was impacted

49. 49
Age Discrimination Releases
 Group termination releases must provide:
– Decisional unit information (who was
considered for termination)
– Eligibility factors (parameters for selecting
employees for the termination)
– Identification information (ages/titles of those
terminated and not terminated)

50. 50
 Christina M. Jepson
direct: 801.536.6820
email: cjepson@parsonsbehle.com
Thank You