EMPLOYMENT LAW FOR THE SMALL BUSINESS OWNER
Whether you are a large or small employer there is universal agreement on one thing: Nobody likes to deal with employee discipline. Maybe it is because of the potential human conflict involved, or maybe it is because it involves pointing out the faults of another person. Regardless, not dealing with employee discipline problems, or dealing with them in half-hearted fashion, usually comes back to haunt you.
An important element of dealing with employee discipline matters is documentation. When an event or incident occurs relating to work performance it needs to be documented. Documentation can be a form that you use, or it can be something less structured. The important thing is that documentation gets done. An important element of documentation is regular or annual employee evaluations. During these evaluations work place and work performance issues need to be addressed. Too many times little effort is put into the evaluations and they are done with little or no thought. Unfortunately, I have seen too many evaluations done that don’t reflect the reality of the situation. I have been in employment situations where the annual evaluations show that work performance of an employee is fine, but when an incident arises the supervisor tells me that he/she has had all sorts of problems with this employee. This assertion of ongoing employee problems is contradicted by years and years of evaluations that show no problems. Don’t make this mistake!
A common question I get is why do I even bother with documentation? If a discrimination claim is ever filed against you through the Equal Employment Opportunity Commission, or there is an unemployment comp claim filed through the Indiana Department of Work Force Development, documentation will usually make or break your case. If you are claiming that an employee had a long history of work problems, but you have no documentation on it, then my experience is that your chances of success are minimal.
Once you get into the habit of documenting work performance then you need to take steps to make sure that you are documenting discipline in the proper fashion. Here are some helpful hints that I have found in documenting work place performance issues:
Make sure there is a clear communication to employees of the workplace policies that exist in your business. Without that foundation then documenting discipline becomes harder.
- Be accurate in your documentation and don’t exaggerate. Avoid words like “always” or “never” in your documentation.
- Be factual in your documentation. Avoid hearsay statements, opinions and legal conclusions. Try to support any subjective conclusions made in the documentation.
- Use clear and concise language. Vagueness in your documentation usually doesn’t help you that much.
- Do your documentation is a timely manner. If you need to get statements from other employees then do it promptly. Don’t procrastinate and delay in getting the documentation. The passing of time erodes memories and weakens your documentation efforts.
- Retain supporting papers. If you have a time sheet that was falsified then attach it to your main documentation.
- Get the signature of the employee you are dealing with in the discipline situation. If you are disciplining an employee for attendance issues then document the problems and get the employee to sign the discipline sheet stating that he/she has received a copy of it. The employee doesn’t have to agree with the discipline action being taken, but he/she should sign a receipt that he/she has received it. If the employee refuses to sign the document then this can be treated as an act of insubordination justifying additional discipline action.
Nobody likes to deal with employee disciplinary situations. However, it must be done in order to make your business run more efficiently and minimize your legal liabilities.
This article is published for information purposes only. It is not intended nor is it to be used as a substitute for independent legal advice.
Stu Weliever practices law with HENTHORN, HARRIS & WELIEVER, P.C., 122 E Main St, Crawfordsville, Indiana, and can be reached at (765) 362-4440 or at stuw@henthornlaw.com.
