the keys to documenting performance - hr's role
DESCRIPTION
The Key’s to Documenting Performance We’ve said it to our managers too many times to count – “Have you documented it?” Far too often, the answer is “no.” As we know, proper documentation is crucial for a myriad of employee relations issues. As importantly, when it comes to discrimination, retaliation and other wrongful discharge claims, legal liability often turns on the documentation. But it’s not enough simply to document, document, document. Poor documentation is as dangerous as no documentation. The key is not only what you say but also how and when you say it. This seminar focuses on the legal and human resource issues implicated in disciplinary documentation. Because these kinds of flaws are common to performance appraisals, this seminar also will examine the necessity of, and common mistakes seen in, the performance appraisal process. About the presenter Michael S. Cohen concentrates his practice in the areas of employment law training and counseling. Mr. Cohen has trained and counseled employers throughout the country on subjects including harassment prevention; workplace diversity; discipline and discharge; hiring and recruiting practices; performance evaluations; FMLA, ADA and FLSA compliance; leave of absence policies; performance management; workplace privacy; sexual orientation and gender identity in the workplace; substance abuse testing; workplace violence; records retention; conducting background checks; teens in the workplace and managing attendance problems. Mr. Cohen has conducted investigations into claims of harassment and discrimination and has drafted employee handbooks, employment agreements, non-compete agreements and post-termination agreements. He has represented clients throughout the country in EEO and other administrative proceedings. Mr. Cohen has been cited as a national authority on employment issues by The New York Times, The Associated Press, USA Today, MSNBC.com, The New York Daily News, New York Newsday, The San Francisco Chronicle, Law National, Law.com, HR Magazine, HR Executive Magazine, HR Executive Online, SHRM On-Line, Employment Law 360, Inside Counsel Magazine, What's Working in Human Resources and Workforce Management Magazine.TRANSCRIPT
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The Keys to Documenting
Performance*
presented by
Michael S. Cohen, Esquire
*No statements made in this seminar or in the written materials should be construed as legal advice pertaining to specific factual situations.
DM2/4470208.1
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Introduction
1. Legal background:
a. “Just Cause”: must be significant deficiencies in
performance or behavior (usually following
progressive discipline)
b. “At will”: can terminate --
i. At any time
ii. For any or no [legal] reason
iii. With or without prior notice
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Introduction
2. Why pre-termination notice is important, even
if the employee is at will:
a. Fairness to the employee
b. Cost to the business
c. Decreases the likelihood of a claim
d. Decreases the employer’s exposure in litigation
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Introduction
3. Why supervisors sometimes fail to provide
adequate pre-termination notice
a. Inadequate time
b. Believe problem will go away
c. Fear of claim
d. Conflict avoidance
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Progressive Discipline
1. Traditional steps:
a. Oral warning (or equivalent)
b. Written warning (or equivalent)
c. Final warning (or equivalent)
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Progressive Discipline
2. Exceptions to progressive discipline include,
but are not limited to:
a. New Hire/Introductory period
i. Legal Significance
ii. Practical importance
b. Remediation unlikely
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Progressive Discipline
2. Exceptions to progressive discipline include,
but are not limited to: (continued)
c. Serious offenses, such as:
i. Harassment
ii. Insubordination
iii. Theft
iv. Violence
v. Sleeping on the job
vi. Falsification of company records
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Progressive Discipline
3. Core elements of disciplinary notice:
a. Expectation(s) not being met
b. Specific failings in terms of performance or
behavior
c. Prior counseling/discipline
d. Expectations going forward
e. Consequence of not meeting expectations
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Core Elements of the Documentation
1. Expectation(s) not being met
a. General expectation
b. Specific expectations
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Core Elements of the Documentation
2. Specific failings in terms of performance or
behavior
a. Objective
b. Factual
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Core Elements of the Documentation
3. Prior corrective counseling
a. Formal
i. Discipline
ii. Evaluation/Appraisal
b. Informal
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Core Elements of the Documentation
4. Expectations going forward
a. General versus specific
b. Time frames
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Core Elements of the Documentation
5. Consequences
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Current Step
• Informal
counseling
• Formal
discipline
• Final warning
Next Step
• Formal discipline
• More severe
discipline, up to and
including discharge
• Immediate
termination without
further warning
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Performance Appraisals
1. Importance
a. Establish expectations
b. Communicate deficiencies (pre-discharge notice)
c. Increase consistency (by ensuring common
criteria)
d. Provide benchmarks for subsequent distinctions
among employees
e. Recognize (and retain) valued performers
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Performance Appraisals
2. Connection to disciplinary process
a. In addition to, not in lieu of
3. Importance of candor
a. Truthful, but respectful
4. Forward looking
a. Establish realistic goals
b. Areas for growth/improvement
c. Next steps in career
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Common Mistakes
1. Common Mistakes for Discipline/Appraisals
a. Focus on cause
b. Focus on intent
c. Untimely
d. Over-evaluation
e. Inconsistency between disciplinary documentation
and performance appraisal
f. No meaningful comments
g. Absolutes/hedges
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Implementation
1. Provide employee with opportunity to tell his or
her side of the story
a. Legal
b. Practical
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Implementation
2. Oral warning
a. Document in writing
b. Copy to employee
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Implementation
3. Final warning
a. State specifically – “this is your final warning”
b. Performance problems – required improvement:
i. Immediate
ii. Significant
iii. Sustained
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Implementation
3. Final warning (continued)
c. Behavior
i. Do not limit to behavior which was the cause for
the final warning
ii. Include also any other problems with performance
or behavior of any kind
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Implementation
3. Final warning (continued)
d. Tools in conjunction with final warning:
i. Performance Improvement Plan (“PIP”) –
employee must make and sustain improvement
both during and following PIP period
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Implementation
3. Final warning
d. Tools in conjunction with final warning: (continued)
ii. Suspensions – exempt employees can be
suspended without pay in full day increments only
for violations of written workplace conduct policies
applicable to all employees.
• No unpaid suspensions of exempt employees pending
investigation
• Suspend exempt employee post-investigation only if
maintain and act consistent with “safe harbor” policy
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Implementation
3. Final warning
d. Tools in conjunction with final warning: (continued)
iii. Decision day – day off with pay
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Implementation
4. Implementing steps:
a. Active life
i. General rule: reasonableness
ii. Escalating scale
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Implementation
5. Signature
a. Usually unnecessary
b. If require, require only acknowledgement of
receipt as opposed to agreement
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Implementation
6. Personnel file
a. All formal discipline/appraisals in formal personnel
file
b. Supervisors may maintain separately “informal
notes”
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Termination Event
1. Approval process
a. Role of HR
b. Resolving disputes without making admissions
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Termination Event
2. Classify the termination decision
a. Discharge
b. Job elimination
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Termination Event
3. Where?
a. Confidential area
b. Uniform safety precaution – escape route
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Termination Event
4. When?
a. Any day but Friday
b. End of day, preferable
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Termination Event
5. Witnesses?
a. Ordinarily, one witness: usually, HR
representative
6. Documentation
a. Memo to file indicating general reason for
termination
b. Memo to the employee (depending on the
circumstances)
c. Consider severance and outplacement for release
to mitigate risk of lawsuits
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Termination Event
7. Termination event discussion
a. Manager
i. Statement that employment will terminate
ii. Date of termination
iii. General reason for termination
b. Human resources
i. Focus on post-termination issues
- UC, severance, outplacement, benefits, etc.
ii. Intervene if necessary
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Termination event —
things not to say (or do)
1. We had no choice but to terminate your
employment
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Termination event —
things not to say (or do)
2. I’m sorry.
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Termination event —
things not to say (or do)
3. It had nothing to do with your performance
(when it did)
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Termination event —
things not to say (or do)
4. You have no one to blame but yourself; you
didn’t try hard enough
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Termination event —
things not to say (or do)
5. I know how you feel
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Termination event —
things not to say (or do)
6. Someday you will thank me when you find a
job that matches your gifts
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Termination event —
things not to say (or do)
7. Pardon the impersonal nature of this
e-mail, but you are fired
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Termination event —
things not to say (or do)
8. I didn’t want to send you an impersonal
e-mail so I wanted to leave you a personal
voice mail letting know that you are fired
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Termination event —
things not to say (or do)
9. This is harder on me than it is on you.
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Thank you!
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Michael S. Cohen Partner
Duane Morris LLP
30 South 17th Street Philadelphia, PA 19103-4196
USA
Phone: 215.979.1882 Fax: 215.405.2592
Email: [email protected] Twitter:
@Cohen__HR__Law
1. Michael S. Cohen concentrates his practice in the areas of employment law training and counseling. Mr. Cohen has trained and counseled employers throughout the country on subjects including harassment prevention; workplace diversity; discipline and discharge; hiring and recruiting practices; performance evaluations; FMLA, ADA and FLSA compliance; leave of absence policies; performance management; workplace privacy; sexual orientation and gender identity in the workplace; substance abuse testing; workplace violence; records retention; conducting background checks; teens in the workplace and managing attendance problems. He has conducted trainings for executives, directors, managers, supervisors and employees in many industries, including financial services, healthcare, pharmaceutical, manufacturing, retail, real estate development, law firms and human services. Mr. Cohen also has conducted trainings for executives, deans and faculty in several institutions of higher education and secondary education. He has conducted more than 150 trainings in the last year.
2. Mr. Cohen has conducted investigations into claims of harassment and discrimination and has drafted employee handbooks, employment agreements, non-compete agreements and post-termination agreements. He has represented clients throughout the country in EEO and other administrative proceedings.
3. Mr. Cohen has been cited as a national authority on employment issues by The New York Times, The Associated Press, USA Today, MSNBC.com, The New York Daily News, New York Newsday, The San Francisco Chronicle, Law National, Law.com, HR Magazine, HR Executive Magazine, HR Executive Online, SHRM On-Line, Employment Law 360, Inside Counsel Magazine, What's Working in Human Resources, Workforce Management Magazine, Human Rights Campaign On-Line, Yahoo! Sports, The Sporting News, The Newark Star-Ledger, The Houston Chronicle, The New Orleans Times-Picayune, The Pittsburgh Tribune-Review, The Syracuse Post-Standard, The Ann Arbor News, The Harrisburg Patriot News, The Mobile Press Register, The Flint Journal, The Desert Sun, The Courier-Post, The Honolulu Advertiser, The Stamford Advocate, The Huntsville Times, AM New York, The Workplace Substance Abuse Advisor, Legal Issues in Collegiate Athletics, Talent Management, BusinessInsurance.com, AZcentral.com, Fort Worth Star Telegram, Honolulu Star-Bulletin, The Columbus Dispatch, The Myrtle Beach Sun News, Richmond Times Dispatch, Detroit News and Business & Legal Reports, Inc. He has been a regular guest lecturer on human resources issues at Temple University and West Chester University for its Masters of Science in Administration program.
4. Mr. Cohen is a 1997 magna cum laude graduate of Temple University Beasley School of Law and a cum laude graduate of the University of Pennsylvania.
5. Areas of Practice - Employment Law
6. Professional Activities - Pennsylvania Bar Association; Philadelphia Bar Association
7. Admissions - Pennsylvania; New Jersey
8. Education
a. Temple University Beasley School of Law, J.D., magna cum laude, 1997
b. University of Pennsylvania, B.A., cum laude, 1993
9. Selected Speaking Engagements
a. Speaker, “Dear Helga: You’re Never Going To Believe What My Employee Did” and “Time To Go Back To School – Updating Your Employee Handbook,” SHRM Annual Conference, June 16-17, 2013, Chicago, Illinois.
b. Speaker, “What´s Your Site – Social Media in Hiring” and “Documenting Performance – Yes It Does Matter,” SHRM Talent Management Conference, May 16-17, 2012, Las Vegas, Nevada
c. Speaker, “Out of the Closet and Into Your Workplace – Sexual Orientation and Gender Identity” and “Background Checks – The Law Has Changed,” Lehigh Valley SHRM Annual Conference, October 5-6, 2012, Bethlehem, Pennsylvania
d. Speaker, “Time to Go Back to School – Updating Your Employee Handbook” and “The ABCs of the FMLA and ADA.” Association of Legal Administrators National Conference, May 24-25, 2011, Orlando, Florida (#1 Rated Speaker at Conference)
e. Speaker, “Get Ready to Hire Again” and “Diversity and the Law,” Association of Legal Administrators National Conference, May 4-5, 2012, Boston, Massachusetts (#1 Rated Speaker at Conference)
f. Speaker, “Hiring and Interviewing” and “It's Not Just a Game: Examining Employment Law Subjects Through the World of Sports,” SHRM National Staffing Conference, Las Vegas, Nevada, April 29-30, 2009
g. Speaker, “Sexual Orientation and Gender Identity Issues In The Workplace,” SHRM National Employment Law and Legislative Conference, Washington D.C., March 9, 2009
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