The importance of documenting performance problems as they occur cannot be overstated. Although this requires meeting with the employee and discussing the issue—which will almost certainly be uncomfortable—it may be your best defense to a wrongful termination claim should the employee feel litigious after termination.
Too many employers rely on the concept of employment at-will to protect them, when the reach of this concept can actually be quite limited. At-will employment means an employer can dismiss an employee at any time, for any legal reason and without warning. It also means an employee can quit at any time, for any legal reason and without warning. The problem is that if an employer has little-to-no documentation and relies on at-will employment—and the theory that legally no reason is required—the terminated employee, their attorney, and possibly a jury of their peers can fill the blank with an illegal reason.
Although you may be within your rights to terminate “for no reason,” it’s a dangerous position to take. If the threat of litigation isn’t compelling enough, there are other reasons to deal with performance and behavioral issues promptly and with documentation.
If They Don’t Know They’re Doing Something Wrong, They Can’t Fix It
A huge number of employees don’t realize their performance or behavior is a problem—or that it’s as bad as it is—until they are being handed their pink slip. Talking to them about it will likely lead to you having a better employee and reduce hefty turnover costs.
No One Likes Being in Trouble
If you talk to an employee about an issue and they understand that failure to improve will result in further disciplinary action, they are likely to shape up. If they are unaffected by discipline, then addressing issues early and often may help you shepherd them out the door more quickly, so you can replace them with someone better.
Documentation Makes it Real for the Employee
It’s easy to brush off a quick, oral scolding time and again, but when employees know something is “going in the file,” they are likely to take it much more seriously.
Other Employees Will Catch On
If you are consistent in addressing performance and behavioral issues, your employees will know it. Consistency is key. If you only haul employees in sporadically for failing to meet expectations, you won’t reap the benefits of a culture of accountability.
Ultimately, talking to employees and making a paper trail will serve you both during employment, by encouraging better performance and reducing turnover costs, and after, should they threaten to sue.
When you find yourself needing to document and address a performance problem with an employee, there are a few important things to keep in mind. Below are some tips for navigating the steps that are often most nerve wracking for employers—compiling corrective action and participating in a difficult conversation.
Tips for Compiling Corrective Action Documents:
- Avoid abbreviations and jargon. Be direct and clear with your language to reduce the risk of misunderstandings and miscommunications.
- Identify the key players at the beginning of the document. Spell out who was involved first, so that everyone starts out on the same page from the beginning.
- Tell the story in chronological order. Do your best to pinpoint an accurate order of events so that a detailed and complete portrayal of the transgression can be documented.
- Note any attached documents in parenthesis. Reference attachments when appropriate to support your claims and enable the employee to understand them fully.
- Quote handbook violations and page number. It’s crucial to document how the transgressions violated policies and protocol that the employee consented to follow.
Once you compile your documentation, you will need to have a conversation with the employee so they have the opportunity to acknowledge their understanding of the issues and whatever expectations for correction that may exist. There’s no way around it—these conversations are often difficult and uncomfortable. But, with proper preparation and a positive perspective, you can do your part to address performance problems as respectfully and efficiently as possible.
Tips for Tackling Difficult Conversations:
- Embrace silence. After you deliver your message to the employee, be silent and attentive so they have the space to respond.
- Listen up! Seek to understand their thoughts, feelings, and concerns without interrupting.
- Acknowledge them. Even if you don’t agree with the employee’s perspective, it’s important to show respect for their perspective and feelings.
- Stay cool! Be prepared for the possibility of a strong emotional reaction and remember that it’s not personal.
- Respond, not defend. Be calm, confident, and concise in your response and resist the temptation to back down or become defensive—again, their response is not personal.
Navigating performance problems with your employees may feel intimidating to you or it may feel like a walk in the park. Either way, continuing to practice and develop effective documentation and communication skills is crucial for reducing risk for your organization and building an effective team.