By Eric B. Meyer
Management-side employment lawyers preach it until they are blue in the face: companies should always document employee performance and disciplinary issues.
Why is this so important? Here’s a real-world example.
This case is Day v. Morgan. Here are the only facts from this case that matter:
- Plaintiff, a former school janitor, claimed to have a disability.
- Before the plaintiff informed his employer that he had a disability, the school had disciplined him at least three times and warned him that if his performance did not improve, he would be fired.
- Plaintiff took disability leave.
- After plaintiff returned to work from disability leave, his employer provided him with specific, written instructions about what was expected of him and his job duties.
- Plaintiff later gets fired.
What you should do to document the issue
The plaintiff argued that his former employer had discriminated against him by firing him because he was disabled. To establish a claim for wrongful discharge under Americans with Disabilities Act, a plaintiff must prove, among other things, that his discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination.
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Here, the court dismissed the plaintiff’s claim because the record revealed that the plaintiff was having job performance problems when the plaintiff was under no physical restrictions, including the start of his employment and near the end of his employment. Further, the plaintiff could not explain his poor performance during these time periods and he could not show that he was satisfying the School District’s legitimate expectations at the time of his termination.
So what do you do when an employee has performance or other disciplinary issues in the workplace?
- Discuss them with the employee. Have an open dialogue. Explain the issue and create solutions to correct the problem.
- Document the issue, the discussion, and any resulting discipline. Could be a formal write-up, a memo to the file, an email. Whatever. Just make sure it is contemporaneous and in writing.
- Have the employee sign off on the documentation. That will eliminate any he-said/she-said. If you get sued, there will less chance of any disputes of material fact.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.