Let's talk about employee relations. Some of the biggest employment blunders come from companies not having proper documentation to support their employee decisions.
The average settlement for wrongful termination cases in California is around $40,000. In 2017, the U.S. Equal Employment Opportunity Commission (EEOC) found that there were 84,254 job discrimination charges in the U.S.
So you received an employee complaint. You did the investigation, you have written statements from witnesses or managers on what happened, you talked to the employee in question and got their statement. Now what?
Here are some basic guidelines to follow as a business owner to make sure you're consistent, fair, and have the proper documentation in place.
1. Be Specific. Keep your discipline policy in your company handbook, with specific steps. While employment relationships are mostly "at-will," having and following a consistent and fair disciplinary escalation procedure will help you prove your claim against wrongful termination. Most companies utilize a "progressive discipline" approach, which means they have steps for infractions depending on the severity.
Example:
a. Step 1: Documented Coaching
b. Step 2: Written Warning
c. Step 3: Final Warning
d. Step 4: Termination
2. Be Thorough. Document policy violations and all conversations. I cannot stress this enough to managers and business owners. "I've talked to him about it several times!" might as well be my ringtone at this point. Have a form or format you use for all write-ups with the BPER method: Behavior, Example, Expectation, Result.
Sample:
Behavior (what did they do): On April 2, 2020, (employee name) was in a heated argument and called them obscenities.
Policy (what policy did they violate): This violates the Company's Behavior and Code of Conduct Policy section 2.3, specifically, "Employees will refrain from use of foul language in the workplace."
Expectation (moving forward): It is expected that moving forward, (employee name) adhere to the behavior and code of conduct policy as stated, and does not use obscenities while at work.
Result (what will happen if they don't adhere to the expectation): Any further disregard for Company policies, or inappropriate acts, will result in additional disciplinary action, up to and including termination.
3. Be Detailed. Make sure you include the date and time, who was present, and have a spot for employee comments. You and the employee should sign the documentation or discipline form (if this is done in email, the employee can reply with "received."
4. Be Consistent. If you write up one employee for doing something, you have to make sure to be consistent in how you handle others, so everyone is treated fairly. You're trying to avoid discrimination- so if the courts ask you "what other similar situations have happened like this, how did you handle those" you can show you handle all discipline the same way.
5. Be Reasonable. The point of discipline and performance improvement is to show that you are being fair, consistent, and trying to help the employee succeed. Obviously, there will be infractions that over step. You may skip to a Step 2 in discipline because what they did was that bad, or they may need to be terminated (sexual harassment, etc.). The key is to stay consistent, treat everyone with the same expectations and accountability standards, and document everything.
Following the above won't guarantee you won't get stuck with a wrongful term lawsuit or that you'll win one - but it will give you a better chance by being prepared. Be clear with your expectations, be consistent with your documentation and discipline, and don't be afraid to over-communicate. Even a simple email, "Just following up to recap the conversation we had earlier, please confirm that you received this email," can cover some conversations.
If you need help making these forms, understanding this procedure, or just want someone to help you administer these policies, contact us.
-Exemplary HR
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