Effective disciplinary documentation

By Tim Twigg and Rebecca Crane

A dentist fired an employee who wasn't performing well. She was absent a lot, failed to chart patients correctly, and had the lowest production numbers. After months of putting up with this behavior, the dentist sent her packing and hired a replacement employee. Six months later, the dentist received a letter from an attorney threatening to sue him for wrongful termination.

This former employee alleged that the dentist discriminated against her. The dentist contacted a professional to seek advice, and his first question was, "What kind of documentation do you have supporting the performance problems you had with the employee?" Unfortunately, the dentist didn't have any supporting documentation. The dentist replied, "Who needs documentation anyway when I am an ‘at-will' employer?"

The problem

"At-will" employment is a common law doctrine that means that either party can end an employment relationship at any time with or without notice and with or without reason. All states except Montana have adopted this common law doctrine as the foundation of the employment relationship.

Nothing in the employment "at-will" doctrine states that the employer will be free of any consequences should he or she exercise his or her "at-will" rights and fire someone. The evolving nature of employment regulations has imposed hurdles that supersede the "at-will" prerogative and, thus, can result in liability for the unknowing employer.

One of these hurdles is violating an employee's civil rights; i.e., protections against discrimination. More specifically, employers may not discriminate against an employee who belongs to a "protected class." This protection takes precedence over "at-will."

Examples of protected classes are age, gender, sex, race, color, religion, or national origin. The list of protected classes continuously grows to include more and more protections for employees, so in a sense, most -- if not all -- of your employees will likely fall into a protected class at one time or another.

In a situation such as the one described here, the dentist, even in an "at-will" state, will be considered guilty until he or she can prove his or her innocence. In other words, the dentist has the burden of proof to demonstrate that the termination was based on legitimate, nondiscriminatory reasons.

The solution

Written records of deficient work performance or misconduct help employers defend against an employee's allegation of wrongful termination. The written documentation, or Employee Counseling Memorandum (call us for Form No. 418), should:

• State the reason for the counseling in specific, factual, concise terms. For example: In the last two months, you have been absent 10 times. The dates of these absences are May 5, 6, 15, 25, 31, and June 10, 11, 12, 20, and 21.
• Outline the specific nature of the discipline. For example, verbal warning, written warning, or suspension. If suspension, specify the duration and whether or not it is without pay.
• Describe the corrective action expected of the employee in specific, measurable terms. For example: Production numbers must be at or above 30% each month.
• Warn of potential consequences if the employee fails to improve. For example: A failure to improve may result in further disciplinary action up to and including discharge.
• Include signatures and dates from all parties (employee, employer, and witness) in order to avoid "he said, she said" claims.

Do not:

• Place the employee on probation or list a probationary period (this may negate your "at-will" status).
• Put a time frame on improvement. For example, do not say: You have the next four weeks to improve, or We will reevaluate your improvement in four weeks, or anything similar. This, too, can negate your "at-will" status.
• Make inflammatory remarks, subjective statements, or draw conclusions that may or may not be accurate.

Be sure to attach all relevant records pertinent to the disciplinary action (policies, attendance records, written statements/complaints, etc.) to the counseling form and place them in the employee's personnel file.

Conclusion

Unfortunately, in most cases such as the one described above, the dentist will be found liable for discrimination and forced to pay a significant monetary award to the former employee. This doesn't have to happen! You can choose a different, safer path by adopting our Golden Rule in Employment Compliance: Objective documentation is the single most effective defense in any type of legal action. Start creating that paper trail NOW!

Tim Twigg is the president of Bent Ericksen & Associates, and Rebecca Crane is a human resource compliance consultant with Bent Ericksen & Associates. For 30 years, the company has been a leading authority in human resource and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. To receive a complimentary copy of the company's quarterly newsletter or to learn more about its services, call (800) 679-2760 or visit the website at www.bentericksen.com.