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How to Handle Difficult Employees: Documenting Misconduct

In a perfect world, all employees would report to work on time and in a regular manner, perform their responsibilities with competence and be a productive team player. In reciprocation, each employer has an obligation to pay the employee an agreed up on amount for the work performed, treat every employee fairly and provide a safe work environment. Of course, we do not live in a perfect world and inevitably every employer will be faced with employee misconduct. The challenge is handling misconduct appropriately, to avoid financial and legal repercussions in the form of unemployment claims, discrimination or wrongful termination suits.

Steps to take on the front-end, before misconduct occurs:

Make sure your employees know what is expected of them. All employers should have very clear policies in place that outline reasonable rules of conduct and performance expectations. Communication of these rules and expectations is the key. It is a best practice to have each employee read, sign and date conduct policies upon hiring. Also, consistent application and enforcement of conduct policies helps to ensure compliance and avoid adverse claims by employees. Providing appropriate training and counseling for the workforce expectations and conduct through the Human Resource Department or an outside source can also provide protection for the company.

Documenting employee misconduct, and protecting the company:

Addressing and documenting misconduct appropriately is one of the most important services a supervisor / manager can provide. The burden of proof in many unemployment claims, discrimination actions or wrongful termination suit lies with the employer, and without a well-documented employee file a company is at risk.  The following are essentials when creating the “paper trail” necessary to protect the company.

1)  An employee discipline form ensures the process: Every company should have a preprinted, standardized discipline form to document every reported incident of misconduct. Document the incident immediately, while the facts are fresh. Write a complete and accurate account of the incident, with times, dates, places and conversations. Site the specific conduct policy violated by the reported incident. This detailed account should be signed by the author and witnessed by at least one supervisor.

2)  Conduct a full and fair investigation before discipline is dispensed: The employer should be objective, interviewing and documenting only the facts of all witnesses to the reported incident. Personal opinions, conclusions or comments in this documentation open the company to potential discrimination claims in the future. Again, this report should be clear, specific and conducted in a timely manner.

3)  Consider each incident of misconduct carefully and apply a fair and appropriate reaction: Uniformity of the process is a best practice in documentation of misconduct. It is the best way to make sure that fair and equal disciplinary actions are being administered to all -- even the most difficult employees.  The offending employee should read, sign and date all documentation pertaining to the incident and subsequent discipline. If they refuse to sign a reprimand once it is issued, that refusal should be considered a separate violation and documented in the same manner as the original misconduct. It is also a best practice to have your Human Resource Department review the policies and procedures with managers and supervisors on regular basis - to ensure familiarity, uniformity and understanding.

Documentation of employee misconduct is insurance for your business.  While it is never a pleasant task, and many supervisors and managers struggle with the process, it is essential. Having an efficient and effective process protects your employees, as well as the company. In the event of a termination, proper documentation can prevent a “he said, she said” situation, which can become costly and detrimental to the company.

At McBrayer, our lawyers conduct regular seminars in the area of human resources on employment policy and procedure. Keeping our clients ahead of the curve is a useful defense when claims arise.

Next we will evaluate when an employee’s misconduct leads to the decision to terminate. Are you prepared? Check back in on Friday, August 3rd to read How to be Prepared: When an Employee’s Misconduct Leads to Termination.

Preston Clark Worley is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Worley concentrates his practice in employment law, criminal defense, litigation and telecommunications. He is located in the firm’s Lexington office and can be reached at pworley@mmlk.com or at (859) 231-8780.

This article is intended as a summary of newly enacted federal law and does not constitute legal advice.

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