Let’s first take a look at this management discipline scenario:
One of your female route drivers has been coming into work tardy at least twice a week for the last three months. In the warehouse with other employees around, you finally speak with the employee about her tardiness. She does not give you any legitimate reason for being late and accuses you of playing favorites because a male route driver who has come in late more times has not been reprimanded. Even though she is correct about the other employee whom you like better because he has a better attitude, you inform her that the next time she is late you will have to discipline her. She proceeds to come in late yet again over the next few weeks, so you discipline her.
Upset with this employee’s defiance and now saddled with having to discipline her, you begin to document the tardiness for her personnel file. Not having kept this information up to date, you try to recreate the dates that she came in late and guessed on the dates. In order to make the document seem more accurate, you also back date the write up to reflect each day you think you verbally reprimanded her.
To top it off while you are recreating this information for the write up, the female route driver came to you to let you know her daughter is going to need surgery in a month and she’ll be needing a leave of absence to care for her. A week later, the cashier is tardy again and you now want to fire her.
Where the manager went wrong
Can you guess what this manager did wrong in this situation? First, the manager allowed the employee to be tardy way too many times before reprimanding her. S/he did not keep track of tardiness timely (and, consequently, made mistakes). S/he reprimanded the employee in public and then did not document the verbal warning. S/he was not consistent with discipline of a comparable employee who was not in her protected class. S/he also back-dated documentation. Lastly, the termination decision came too late and too close to her leave request which can create a Family and Medical Leave Act (FMLA) retaliation issue now.
You may be asking yourself, why is this so important? In this scenario, although the route driver may have been habitually late, may have had a bad attitude and may have deserved to be ultimately fired, the manager’s improper documentation only creates the impression that the company did not discharge her for tardiness, but for the real reason of discriminating against her because she is a woman, or, alternatively, in retaliation for her requesting a leave of absence under the FMLA. Unfortunately, we live in a society where we need to assume all disgruntled employees are going to sue the company. Thus, as management, we need to be prepared and document correctly up front. Here are some statistics from the Equal Employment Opportunity Commission (EEOC) during 2013 that gives some insight on how much employees do sue for alleged discrimination:
•Employees filed 93,727 Charges with the EEOC
•EEOC got employees just over $372 million from their employers
•35 percent = Race Discrimination
•41 percent = Retaliation
•29 percent = Sex Discrimination
•23 percent = Age
•28 percent = Disability
When its too late for documentation
Once an employee files a Charge with either the Equal Employment Opportunity Commission or any state agency counterpart, it is too late to do anything related to your discipline documentation. You cannot change any documentation, you cannot delete documentation, you cannot create documentation -- what you have is what you have in order to build your case in defense to the employee’s allegations. A frequent problem we see is when there is no documentation in an employee’s discipline file. There is nothing to support our defense, we cannot easily refresh management’s memories for any hearing, trial or agency interviews, and replacement management will not know the facts. This inevitably will create difficulties in responding to a Charge or a lawsuit of discrimination or harassment.
Now that you understand the importance of why management should properly document employee performance and conduct issues, here is a quick guide on how to avoid the seven deadly sins and traps managers can fall into when doing so.