By Paul Falcone
Rule 3: Understand how documentation can be used against your company if composed the wrong way.
Here’s a special consideration: When employees are terminated for cause and bring wrongful termination actions against prior companies, judges and arbitrators look to the consistency in a company’s written communication in order to justify the termination and determine which party prevails.
This written record is typically found in the form of written warnings and annual performance reviews, laid out side by side on a table as exhibits. But which one is more important in an arbitrator’s eyes: the annual review or the written warning?
Generally speaking, the annual appraisal is given more weight in legal deliberations because it covers an entire year’s work. A written warning, in comparison, could simply be the result of one bad day in the office or a short-term string of thoughtless acts or omissions. Think of it this way: A written warning typically functions to break the chain of positive performance evaluations that’s been documented over a number of years. Still, the annual appraisal is generally viewed as the ‘‘anchor’’ document that evidences the company’s formal communication record with its worker.
In comparison, the written warning serves to reestablish and redirect the company’s written communication record by placing an individual on notice that failure to provide immediate and sustained improvement may result in further disciplinary action, up to and including dismissal. Disciplinary consequences written this way clearly state that an individual’s position is in serious jeopardy of being lost. It would subsequently be very difficult for plaintiff attorneys to argue that their client (your ex-employee) was denied workplace due process because the individual couldn’t discern—based on your company’s formal communication record—how serious the situation had become.
The question you have to ask, of course, is whether one written warning or multiple warnings will be necessary to justify a termination. That can only be answered on a case by case basis, depending on an individual’s tenure, historical performance record, and protected category status. Remember, however, that you have a lot more discretion to terminate or issue a final written warning for a first-time ‘‘conduct’’ offense (like theft or insubordination) than for a ‘‘performance’’ infraction (like substandard work quality). In the case of performance infractions, you’ll typically be expected to provide workers with all the steps of progressive discipline typically accorded under your company’s policies and past practices, which could include written and final written warnings as well as suspensions, in some cases.
However, if written warnings are subsequently followed by a positive annual performance review showing that the employee has improved and now meets company expectations, then that positive performance evaluation will, in essence, nullify the written warning issued during the review period.
So if you have any remote hesitations about an individual’s ability to make it in your department or company in the upcoming year because of his sub par job performance or inappropriate workplace conduct, document it! You should grade the individual as ‘‘not meeting expectations’’ in the ‘‘Overall Score’’ section at the end of the performance appraisal form. Otherwise, the positive record that you create today will make it harder to terminate the individual tomorrow.
Rule 4: Performance reviews are absolute, not relative.
Too many unsuspecting, yet good-hearted managers feel that they’ve given an employee a real message regarding their substandard performance by assigning them lower grades than everyone else on the team. If the other four employees in your unit received ‘‘exceeds expectations’’ scores (for example, 5 out of 5), and this particular individual received only a ‘‘meets expectations’’ score (for example, 3 out of 5), shouldn’t she realize that she’s performing poorly?
Absolutely not! If the company deems a 3 an acceptable score, then the employee hears that she’s met expectations. In a court of law, that individual employee may state that she realized that she scored lower than everyone else in the department or that she had no idea what scores the others received. In either case, her lawyer’s argument will simply state that she had no idea that her job was in jeopardy because her overall score was acceptable.
The lesson here is simple: If the overall score for the performance period shows that the individual is not meeting company expectations, then your communication record will remain consistent and incontestable in its intent. On the contrary, trying to hang your hat on the ‘‘message’’ that one person received the lowest overall score in the unit is no defense to a wrongful termination charge. A jury most likely would not sustain your logic that the employee had cause to believe that she was heading down the road to termination.
Likewise, most performance appraisal forms have nine or ten individual categories in addition to the ‘‘Overall Score’’ at the end. Substandard scores in individual categories will certainly help your case if you’re forced to defend a termination, but in and of themselves, they may not be an absolute defense. Instead, be sure to give the individual a failing ‘‘Overall Score’’ at the end of the appraisal form to reflect unacceptable performance for the entire review period.
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