All misconduct or deficiencies in work performance should be documented by the employer contemporaneously when the conduct occurs. If the employer is not immediately aware of the performance deficiency or misconduct, it is crucial to document the incident immediately upon discovery.
Ideally, the company will have specific forms to document these issues. However, if the employer does not have specific forms, the company can simply place a memo in the employee’s file, with a specific description of the problem with work performance or misconduct. The company does not have to inform the employee that the documentation occurred, but the prudent business practice is to inform the employee and require the employee to sign an acknowledgement of the occurrence.
If the company wants to terminate the individual’s employment based upon misconduct, the company should do so immediately. The company should not inform the employee of misconduct, allow the employee to continue working for a prolonged amount of time, and then rely upon the same specific incident of misconduct to terminate employment. A substantial delay in time between the discovery of employee misconduct and the termination action may leave the company vulnerable to a claim for unemployment benefits.
There are several other important reasons to document performance issues contemporaneously with their occurrence. First, an individual’s memory generally fades over time, and specific important details may be forgotten. The written documentation may help individuals to remember important details months or years later in the event of litigation.
Additionally, the company can use the written documentation to assist in completion of annual reviews. The documentation (good or bad) that the company can look at can help the company give the employee a more complete evaluation of the employee’s job performance throughout the year.
There is some downside to the maintaining the performance documentation in the employee file. In a lawsuit, these documents will be discoverable and would have to be turned over to the plaintiff in Rule 26(a)(1) Initial Disclosures or a discovery request. However, as long as the information in the employee file and supporting documentation is truthful and accurate, the benefits of documenting employee performance deficiencies and misconduct greatly outweigh the risks of omitting this business practice.
Levy Law Offices can assist businesses in establishing record keeping and employee file documentation procedures. If you have any questions about the legal implications of an action that is contemplated regarding an individual’s employment, you should speak to an employment law attorney before taking any action.