Legal Best Practices for Documenting Performance Problems

Performance reviews are a crucial element of employee management, serving as a barometer for productivity, engagement, and fit within a company. A performance review that glosses over issues or inflates achievements does a disservice to everyone involved. It can mislead an employee regarding their standing in the company and can leave an employer vulnerable to costly legal challenges, potentially ranging from $5,000 to upwards of $100,000. Therefore, it’s imperative that managers document both performance triumphs and troubles with equal rigor in reviews and written warnings.

Be Smart About What You Document

Adopt the CAP method (Conduct, Attendance, Performance) as a framework for documentation. These three pillars provide a clear structure to evaluate and record an employee’s work life.

  • Conduct: Note any incidents of misconduct, their context, and any corrective actions taken.
  • Attendance: Keep accurate records of absenteeism or lateness, which can affect performance evaluations.
  • Performance: Detail how well the employee meets job responsibilities and performance goals.

Remember, if it’s not in writing, it didn’t happen. This mantra underscores the need for a written trail for all performance-related interactions. Verbal warnings or coaching sessions should always be followed up with a written note to the employee’s file.

Best Practices: Roadmap of Discipline to Discharge

Upon Hiring: Set clear expectations from the outset by providing a detailed job description outlining the duties and performance goals.

First 90 Days: Hold a check-in meeting to confirm that the employee understands their role and is performing adequately.

Regular Oversight: Offer consistent coaching and support to guide the employee toward success.

At the First Sign of a Serious Problem:

  • Immediate Discussion: Have a talk with the employee about the issue, documenting the conversation afterward.
  • Escalate to HR if Needed: Depending on the severity, involve HR early to help facilitate a resolution.
  • Implement Discipline as Necessary: For persistent issues, consider written warnings or other disciplinary actions.

Annual Performance Review: Conduct a comprehensive and truthful review, making sure to document any performance problems and previous corrective actions taken.

If Problem Persist: Implement a structured disciplinary process, which might include a last-chance warning, clearly outlining:

  • Nature of the Problem: Describe the specific issues affecting performance.
  • Remedial Action: Explain how the employee can correct the problem.
  • Timeframe: Set a clear deadline for improvement.
  • Consequences: State the potential outcomes if the problem isn’t rectified, including possible discharge.

Trigger Event for Discharge: Establish a clear event or time after which termination will be considered if there’s no improvement.

HR Involvement: Ensure consistency across the organization by involving HR in the process. They can help maintain an objective perspective and ensure that all steps are documented.

Documenting Termination: When termination becomes necessary, document the rationale succinctly, clearly, and without unnecessary elaboration. Record:

  • All Reasons for Discharge: List the justification for the decision.
  • Avoid Overstatement: Present the facts without exaggeration.

Remember, the documentation will likely become “Exhibit A” in any legal dispute, so precision and factual accuracy are paramount.

What If I Need Help?

Thorough and honest documentation of performance issues is not just a best practice; it’s a shield against potential legal challenges and a crucial factor in fostering a culture of accountability and improvement. By consulting with legal experts from Catalyst Legal, you can fortify this shield with robust legal insights, ensuring that your documentation practices are not only compliant but also strategically sound.


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