EFFECTIVE DOCUMENTATION OF EMPLOYMENT ACTIONS

Transcription

1 EFFECTIVE DOCUMENTATION OF EMPLOYMENT ACTIONS July 18, :00 to 3:00 p.m. Hosted by: Presented by: Alexandra H. Clauss, Esq. 30 Main Street, Suite 500 PO Box 1489 Burlington, VT Tel: Fax: Primmer Piper Eggleston & Cramer PC - All Rights Reserved 1

2 SPEAKER Alexandra Alexa Clauss is an attorney and Shareholder with Primmer Piper Eggleston & Cramer PC in Burlington, Vermont. Her practice is devoted to advising employers on laws affecting the workplace and a wide range of human resources issues. She is a frequent speaker on HR topics, and she conducts workplace trainings, employee handbook reviews, and internal investigations. Alexa received her Bachelor of Commerce from McGill University and her J.D. and Sports Law Certificate from Tulane University Law School. She is admitted to practice in Vermont, New Hampshire and California. She has been selected as a Super Lawyers Rising Star in Employment & Labor each year since Primmer Piper Eggleston & Cramer PC - All Rights Reserved 2

3 Please Note These presentation materials are for informational purposes only and not for the purpose of providing legal or professional advice. Readers facing a specific issue or problem should seek the assistance of an attorney. Due to the rapidly changing nature of the law, information contained in these slides may become outdated and is subject to change without notice. We do not represent or warrant that the information in these presentation materials is or will be always up-to-date, complete, or accurate Primmer Piper Eggleston & Cramer PC - All Rights Reserved 3

4 GOALS OF TRAINING Understand reasons documentation is important. Review implications of NOT documenting. Explain the types of documentation that are a supervisor s responsibility. How and when to communicate with Human Resources. Strategies for effective documentation Primmer Piper Eggleston & Cramer PC - All Rights Reserved 4

5 WHY is Documentation IMPORTANT? Establishes a record of employment actions taken and the reason for the actions. Informs employees what is expected of them and consequences if they don t meet expectations. Creates a written record to guide employer and employee s future behavior. Serves as evidence of employer s business reasons for actions. Creates benchmark for fair and equitable treatment. ALL documentation could be discoverable Primmer Piper Eggleston & Cramer PC - All Rights Reserved 5

6 Implications of NOT Documenting Performance or attendance does not improve. Negative impacts on business and morale. Employees may not be treated similarly or equally. Employees may not be treated fairly. Lack of documented, formal evidence to support defense in event of legal claim Primmer Piper Eggleston & Cramer PC - All Rights Reserved 6

7 When Should Documentation be Created? Setting and reviewing annual performance goals. Performance reviews. Violation of a company policy, procedure, practice, code of conduct. Poor attendance or performance. Employee complaints/requests/investigations. Promotion/demotion/layoff/termination. Change in job duties or expectations. Trainings. Bonus/merit increase decisions 2018 Primmer Piper Eggleston & Cramer PC - All Rights Reserved 7

8 When Should a Supervisor Consult with HR? The employee makes any request for accommodation (religious, disability or pregnancy-related) Any request for a flexible work arrangement Any leave that may implicate state or federal family and medical leave laws Harassment or discrimination complaints Whistleblower-type claims The employee is discussing unionization activity (concerted activities) 2018 Primmer Piper Eggleston & Cramer PC - All Rights Reserved 8

9 When Should a Supervisor Consult with HR? (cont.) Written warnings Demotion/Promotion Significant change in job duties Egregious violations of policy or code of conduct Layoff selection Termination of employment 2018 Primmer Piper Eggleston & Cramer PC - All Rights Reserved 9

10 Strategies for Effective Documentation Good documentation answers the following questions: Who (who was present/involved) What (what occurred, what was discussed, what was employee s response, what was the outcome, what is the expected improvement/change) Where (where did events take place) When (dates/times behavior reported, addressed) 2018 Primmer Piper Eggleston & Cramer PC - All Rights Reserved 10

11 Strategies for Effective Documentation (cont.) Follow the employer s policies Be consistent in utilizing forms, if any Start early. Discuss performance continuously. Don t wait, hoping the issue will improve or go away. Ask yourself: if someone outside the organization read the documentation, would they understand the situation and the impact it had to the employee, co-workers and the employer? 2018 Primmer Piper Eggleston & Cramer PC - All Rights Reserved 11

12 Strategies for Effective Documentation(cont.) Written Warnings should include: The employer s expectation/policy and how the employee has failed to meet that expectation/policy (specific examples). Reference to prior counseling or discipline, if any. The employer s expectations for the employee going forward. The consequences of the employee s failure to make the requisite improvement. Notes on discussion of warning: date and time, who present, what discussed, employee s response, the outcome Primmer Piper Eggleston & Cramer PC - All Rights Reserved 12

13 Strategies for Effective Documentation(cont.) Meet with employee to review warning. Ask employee to sign, acknowledging receipt and discussion. Copy of written warning goes to HR for personnel file. Document discussion from meeting. Inform HR of any issues that came up during meeting (though an HR representative may have been be present) Primmer Piper Eggleston & Cramer PC - All Rights Reserved 13

14 Effective Documentation IS SPECIFIC GIVES EXAMPLES Documents the FACTS, not subjective judgments or conclusions Does NOT exaggerate Does NOT minimize 2018 Primmer Piper Eggleston & Cramer PC - All Rights Reserved 14

15 Examples Don t use labels. Provide examples. No: Melissa has a bad attitude and is not committed to the Company. Yes: On [date] Melissa denied responsibility for failing to achieve her XYZ goal. Instead of brainstorming solutions for how to achieve her XYZ goal, Melissa blamed others. On previous occasions, Melissa has not accepted new job tasks without persuasion. For example, on [date], she did Don t focus on the employee s intent. No: Melissa doesn t try/doesn t care. Yes: What is the result? Melissa did not meet X deadline to complete X work, despite repeated reminders Primmer Piper Eggleston & Cramer PC - All Rights Reserved 15

16 Examples Don t focus or speculate on perceived cause of the problem. Keep content job-related. No: Melissa s hearing loss makes her an ineffective employee. I am concerned with Melissa s performance decline and think she may be depressed. Yes: On [DATE], Melissa failed to follow her supervisor s instructions to do XYZ. Melissa s work on XYZ project had numerous typographical errors and inconsistencies. Avoid using absolutes. Be specific and factual. No: Melissa is always late. Melissa is never prepared. Yes: Melissa was late for the following shifts last week: [date], [date], [date]. Melissa did not seem prepared for her presentation on [DATE] and failed to effectively answer several of the team s questions Primmer Piper Eggleston & Cramer PC - All Rights Reserved 16

17 Examples Don t include uncertain/indecisive comments. No: Melissa doesn t seem to understanding how to utilize the Company s software. It would be helpful if Melissa finished her filing. Yes: Melissa has made the following serious mistakes using the Company s software: [XYZ]. Melissa must complete all outstanding filing by [date]. There is such a thing as too much detail. No: listing everything the employee has ever done wrong. Yes: There have recently been a number of unacceptable interactions with customers. The following are three examples. Don t use overly technical language. Express technical deficiencies in language that could be understood by your successor, a neighbor (or a jury) Primmer Piper Eggleston & Cramer PC - All Rights Reserved 17

18 Examples Be specific. No: Melissa must arrive on time. Melissa has a bad attitude. Yes: Melissa must be prepared to start her shift at 9:00 a.m. On December 23 rd, the Company received a customer complaint that Melissa was rude while providing services. On several occasions during the week of, Melissa rolled her eyes, crossed her arms, and made huffing sounds when her supervisor gave her an assignment. State consequences that will be followed. No: Any reoccurrence of tardiness will result in termination. [*unless this is in fact, the final warning, and the employer intends to follow-through with a termination] Yes: Possible consequences for failure to improve performance or correct behavior include disciplinary action, up to and including termination of employment Primmer Piper Eggleston & Cramer PC - All Rights Reserved 18

19 Examples Avoid statements that could create liability/don t make legal conclusions. No: Melissa engaged in sexual harassment. Yes: Following an investigation, we conclude that on December 23 rd, Melissa touched John in a manner that witnesses characterized as sexual in nature. John reported that Melissa s actions were not welcome. No: Melissa committed malpractice. Yes: Melissa did not meet the Company s high standards on [DATE] when she Primmer Piper Eggleston & Cramer PC - All Rights Reserved 19

20 KEY TAKEAWAYS Documentation is important for the employer, the supervisor and the employee. Failing to document can lead to misunderstandings and potentially legal claims. Involve HR with matters related to warnings, accommodations, medical leave, harassment/discrimination claims, whistleblower type claims, and terminations. Document consistently Primmer Piper Eggleston & Cramer PC - All Rights Reserved 20

21 THANK YOU! Questions? My Contact Info Alexandra H. Clauss, Esq. 30 Main Street, Suite 500 PO Box 1489 Burlington, VT Tel: Fax: Primmer Piper Eggleston & Cramer PC - All Rights Reserved 21