In the trial of most employment discrimination, harassment or retaliation cases, the employer’s documentation of its actions is critical.  An employer defending against these claims will need to be able to prove to a jury that it was its legitimate nondiscriminatory or non-retaliatory reason that motivated its actions as opposed to unlawful animus.  Contemporaneous written documentation of an employee’s performance problems, while not required, can go a long way in persuading a jury what, more likely than not, motivated the decision.  In writing effective performance documentation, here are some tips that can be considered.

  • Address the performance deficiencies or misconduct timely.  Rather than waiting for the "last straw" counsel employees on areas where they need improvement contemporaneously when those issues arise.  This provides the employee with fair notice that his or performance is deficient and will generally provide them with sufficient warning and opportunity to improve the performance.  Jurors, many of whom are employees themselves, expect plaintiff-employees will be given notice of their performance problems (unless sufficiently severe) before they rise to the level of terminable offenses.  
  • While it sounds simple enough, describe what it was that the employee did that violates the employer’s policies or expectations.  Be specific with the dates, times and places of the misconduct or poor performance.  If the employee has only been provided with verbal warnings in the past, describe the dates, times and places of those verbal warnings when it comes time to move to more formal discipline like a written write-up.
  • If the employee has received previous warnings or performance improvement documentation for the same or similar violation, include that information along with the date of the previous write-up and the specifics of that incident(s) as well.
  • If the employee has been advised of the policy or expectation that has been violated, set forth how the employee was informed of the policy or expectation.  For example, if the policy is set forth in the employer’s handbook, note that fact as well as the fact that the employee has been provided a copy of the handbook and signed a written acknowledgment of receipt. 
  • Be sure that the documentation advises the employee that improvement is expected and which such improvement must be accomplished.  For example, a warning for insubordination or safety violations might require immediate improvement whereas improvement based on a performance quota might be accomplished over time –e..g, 90 days.
  • If there is to be some follow-up by the employer, make sure that follow-up takes place and that the employee is given honest feedback on his or her progress toward accomplishing the improved performance.
  • Consider whether you will provide an area for the employee to provide a rebuttal or what the employee intends to do to improve his or her performance.   While this provides the employee with an opportunity to provide an excuse or justification for the poor performance, it also provides employees with an opportunity to give thoughtful consideration to the concrete steps he or she will implement to improve the performance.  This increases the likelihood that the employee will be successful in improving his or her performance.
  • Have a place for the employee to sign and date the form (or for a witness to sign that it was presented and discussed with the employee in the event the employee refuses to sign).  In cases where the employee has not signed the performance documentation, there is the possibility that the employee will deny that the events occurred.  Even worse, the employee could accuse the employer of fabricating the performance documentation for purposes of the termination or litigation.  The presence of an employee signature reduces the ability or effectiveness of an outright denial by the employee that he or she was warned of the prior performance deficiencies or misconduct.
  • Use a preprinted form for performance issues.  This will assist in ensuring that the information suggested in this post is included.  A sample form is available here.

With these tips, employees can be better apprised of their performance deficiencies and the documentation can be valuable evidence in the event the employer has to defend its actions in court.