ProSpeak

Why Consistency and Documentation Matter
10/8/2018
Loren Allison, attorney
ProSpeak

Discipline/corrective action must be issued consistently. Two questions employers should ask before corrective action deciding upon what discipline to mete out is: “What actions have we taken in the past under similar circumstances?”; and “Are there any circumstances that would justify departure from that practice?” 

Inconsistency in corrective action is a serious problem and one that costs employers dollars if challenged and proven in arbitration by the EEOC, NLRB or a judge/jury. It is imperative that discipline follows reasonably close in time from the conduct for which the employee is being disciplined. Any delay in discipline is far less likely to have the desired result when it is not meted out reasonably close in time. 

More than any other factor, the presence or lack of adequate documentation is the most important consideration in determining whether or not you win or lose a lawsuit or charge of discrimination and, in many cases, it is the determining factor as to whether or not the employee even files a suit or charge. In addition, documentation is frequently a deterrent to the commencement of proceedings. Individuals who know that their deficiencies have been documented realize their chances of success are limited and simply forego instituting legal proceedings. 

Most managers and supervisors are understandably reluctant to take the additional time needed to put something in writing that could just as easily be communicated orally. However, “an ounce of prevention is worth a pound of cure.”

I recommend: 1. The document be dated; 2. The document be signed by the person preparing it; 3. The employee’s deficiencies should be thoroughly set forth; 4. The employee should be told what the next step will be if the needed improvement is not shown, i.e., discharge, suspension, etc.; 5. The document should reflect the fact that the employee is being told that it will go in his/her file; and 6. The employee should sign the document if possible.  

Loren Allison

Phone: (260) 466-5205

Email: info@lkallison.com

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