Dig, if you will, a picture.
A Sunday in October. But not just any Sunday. A Sunday of revelation, of epiphany.
On this Sunday, I watch my beloved Philadelphia Eagles not from my own center-city apartment, but from a jam-packed sports-bar. My long-time buddies, Al and Mike, sitting next to me, we await the 4:15 kickoff. I'm nervous, I'm tense, I'm a little bit excited.
Several minutes into the game, Donovan McNabb already has connected three times with Terrell Owens, the Eagles' colossally talented and equally colossally petulant wide receiver, three times, the last reception in the corner of the end zone for a touchdown. As my Philadelphia brothers and sisters begin chanting, "T.O., T.O., T.O., T.O., T.O., T.O.," three things occur to me:
1. It's incredible how quickly a city so starved for a championship will forgive even a guy as selfish and immature as Owens, as long as he performs on the field;
2. As I hear my voice also chanting the Owens anthem, I am more than a little disgusted with myself; and
3. But for the Eagles' sending Owens a letter before the regular season started, outlining the problems with Owens' conduct and the team's expectations going forward, there's a good chance that the love fest that is happening in the bar would not have occurred.
While professional sports franchises certainly are staggeringly different in many ways from other organizations, successful management of any "team," requires effective communication to, and discipline of, its problematic employees. As the Eagles' management realized, an employee who is not meeting an organization's expectations must be notified formally of his or her deficiencies, provided with an opportunity to improve, and informed of the consequences of not meeting expectations. Whether your employee is Terrell Owens or Owen Terrell, documenting discipline makes sense.
Why Documenting Discipline Matters
Many employers think, when confronted with the disciplinary process, that their employees are at-will. Does that not mean, they think, that the employer can terminate any employee for any reason, no reason, good reason, bad reason, with or without notice, as long as the reason is not discriminatory or violative of public policy? Answer: Sort of.
Most employment is at-will, which means an employer can, legally, discharge an employee for any or no reason, as long as the reason is not unlawful or against public policy. However, there are some very real risks in not following the disciplinary process in the large majority of cases:
1. Fairness to the Employee. There should, most times, be two overriding goals for the disciplinary process: (a) make the employee aware that there is a problem; and (2) give the employee an opportunity to improve. In most cases, the objective should be to have the employee fix the deficiency so he or she can become a better employee. If an employer simply terminates employees without providing such an opportunity, not only will that employee become angered (note: employees who do not like you are more likely to sue you), the organization's resources will be wasted.
2. Cost to the Business. This cost takes many forms. First, there is the obvious cost of an employee who is not performing to standard. That employee is costing the employer money due to his or her lack of productivity. If an employee is supposed to produce 200 widgets per day, but only produces 100, that employee is costing the employer 100 widgets each day. If a manager does not provide the employee with notice of the problem, but rather ignores it, hoping it will improve, that manager is costing the organization money every day.
In addition, if that same manager, rather than ignoring the problem, simply fires every employee who does not perform to standard, that manager is going to spend the better part of his or her time, and a huge amount of his or her operating budget, training and re-training new employees. Conversely, if that manager simply fires one of some of the employees for poor performance, that manager is begging for a discrimination lawsuit. Different treatment of similar employees who engage in similar conduct is the breeding ground for such claims.
Finally, an organization that terminates employees without first providing written notice to the employees will develop a reputation in the business community of being unfair. This reputation will, without question, have a significant impact on the organization's ability to retain employees (causing a revolving door of employees who must be trained and re-trained) and to recruit employees (resulting in the employer either settling for second-rate employees or paying first-rate employees more than it otherwise might have to).
3. Exposure to and in Litigation. As mentioned above, a manager who inconsistently applies his or her organization's disciplinary process will treat similarly situated employees differently. Why does this matter? Discrimination claims. But, says the employer, if my manager's reason for doing what he or she did is not discriminatory, why do I have to worry?
Assume that two employees engage in the same misconduct - both are late for work five days in a row, without excuse. Assume now that employee #1 is a Caucasian, male, under 40 years of age, does not have a disability and is heterosexual. Now, assume employee #2 is an Asian, female, over 40 years of age, has a disability and is gay. If your manager provides employee #1 with an informal warning and gives employee #2 a final warning, that very well may be perceived, not only by that employee but by eight reasonable people sitting in a jury box, as evidence of bias.
What Disciplinary Documents Should Look Like
Managers typically give two reasons for their failure to document discipline: (1) "I am too busy and don't have time;" and (2) "I didn't want to put anything down in writing that may hurt the organization."
With respect to excuse number one, it is just that, an excuse, and a lame one at that. All managers are busy. If a manager says that he or she is too busy to take 30 minutes to properly create a disciplinary warning, ask that same manager how much time he or she thinks will be involved in preparing for, and participation in, his or her deposition in the discrimination claim brought by the employee who did not receive proper disciplinary notices before the employee's termination. "I don't have time" is not a legitimate excuse.
The second reason many managers give for not preparing a disciplinary trail is that they did not know what the document should look like and, therefore, were concerned that putting something in writing may hurt the organization. This is understandable. Many managers do not know how appropriately and respectfully to create a document explaining to an employee the problem with his or her work performance or conduct. There are steps managers can follow.
Five core elements should be present in each disciplinary notice a manager prepares: (a) expectations the employee has not met; (b) specific failings of the employee in terms of performance and behavior; (c) prior counseling the employee has received; (d) expectations of the employee going forward; and (e) consequence of not meeting those expectations. Below is a brief description of each of the elements.
1. Expectations Not Being Met. What does the organization expect of this employee that has not been done? For example, if an employee continually violates the attendance policy, make clear to the employee that he or she has received a copy of the organization's handbook or policy relating to attendance which, in relevant part, explains to the employee what is expected in terms of attendance. If the manager is not certain how most effectively to explain the expectation, quote the actual policy with which compliance is expected.
2. Specific Failings. What has the employee done, in terms of performance or behavior, that has not met the organization's expectations? This really is the critical portion of the disciplinary notice as it is the portion that will explain to the employee what he or she has done wrong. Not surprisingly, this also is the part of the notice with which managers have the most difficulty. The overriding premise to the drafters is to focus on behaviors and outcome, do not focus on things like what the manager may perceive as the reason for the behavior or the intent of the employee in not meeting expectations.
3. Prior Counseling/Discipline. What prior discipline or counseling has the employee received. Be sure to include not only actions that have resulted in formal disciplinary action, but also informal counseling sessions.
4. Expectations Going Forward. What is expected of this employee as he or she continues as an employee of the organization? Be certain in this section of the disciplinary notice to include time frames for the improvement. Generally, an employee should be given more time to correct performance deficiencies, which could take at least 30, 60 or 90 days to improve, than to correct conduct or behavioral problems, which typically need to be corrected yesterday.
5. Consequences of Not Meeting Expectations. What will happen to the employee if the employee does not satisfy the expectation criteria in the time permitted for the improvement? In this last section of the warning, the employer's message must be clear as to what faces the employee who fails to comply with its dictates. If an employee is at the step of informal counseling, the memo should make clear that failure to meet expectations will result in formal counseling. If the employee already has reached the formal discipline stage, the warning should explain that if improvement does not occur, the employee will be subject to further disciplinary action, up to and including discharge. Once the employee has reached the final warning stage, the warning must make clear that any further infraction will result in termination. With respect to the final warning language, the warning should not equivocate and the manager must be ready to take action based on the language. If the disciplinary notice includes the "you will be terminated" language and the manager does not follow through, the disciplinary process will lose credibility and that manager will lose the respect of his or her employees.
The documenting discipline process if done correctly, takes time; however it absolutely is time that must be spent. It is critical not only because of fairness considerations with regard to employees, but also so that the organization appears justified, and thus is more protected in litigation, in the event termination is necessary. As the Terrell Owens situation demonstrates, the process works on even the most difficult employees in even the most complicated situations.
So, in early February 2006, when you and I are standing on Broad Street participating in the parade for our Super Bowl Champion Philadelphia Eagles, remember what probably saved the season. It wasn't extra cap money, it wasn't a new blocking scheme, and it certainly wasn't the special teams. It was a piece of paper that explained to T.O. what the Eagles expected of him and what would occur if he did not meet these expectations.
Michael S. Cohen is an Associate in WolfBlock's Employment Services Practice Group.