Self- Inflicted Wounds

I am amazed at how often employment litigation is a self inflicted wound for the employer. In an ongoing series, I am going to share some of  the common self-inflicted wounds that I have witnessed and offer some suggestions for avoiding them.

Self-Inflicted Wound — Poor Writing

By now, most employers understand that discipline and terminations should be memorialized in writing. A problem remains with the quality of the writing.  In the past year, I tried two cases that could have been minimized or avoided if the written documentation of discipline and termination had been more effective.  The really unfortunate thing is that if an attorney knowledgeable in labor and employment law had spent a few minutes reviewing the documents before they were used, the issues that were raised in the cases probably would have been avoided.  Most employers think twice before calling their attorneys to review documents because of the expense.  However, paying for a quarter or half hour of an attorney's time to prevent a problem is preferable to paying for the time required to defend a lawsuit.

As to writing, the underlying problem is that business people often write discipline and termination documents as if they were writing for business rather than legal purposes.  They communicate, they explain, they expound, and they write in that somewhat roundabout way designed to avoid offending anyone.  As a result, they often create documents that are easily shredded by attorneys.  By way of example, consider a chronically tardy employee who receives this discipline:

John Doe has been habitually late in arriving to work and this has caused his performance to suffer and has been detrimental to the morale of his department. As a result, he is being disciplined.

As written, the above statement generates hours of deposition questions for the unlucky author to answer:

  • What do you consider “habitual” tardiness; how often per week/month/year?
  • What is the company's policy for tardiness – does it refer to “habitual  tardiness”?
  • On what dates was John late?
  • How late was he on each date?
  • Did John call in to let anyone know he was running late?
  • How did John's performance suffer?
  • What evidence is there that his tardiness caused his performance to suffer?
  • How did his tardiness impact morale?
  • Which employees reported that their morale was lowered because of John's  tardiness?

Etc., etc., etc.

The better approach is to stick strictly to the facts, identify the conduct as unacceptable, and indicate the consequences of further misconduct. In our example:

John Doe was more than 10 minutes late in arriving to work on January 10, 12, and 13, 2010. This tardiness is unacceptable. John must report to work on time. Further tardiness may lead to additional discipline up to and including termination of employment.

Of course, there is no magic approach to writing discipline that works in every case. Even my “good” example might not be appropriate depending on the underlying circumstances.  That is why there is no substitute for involving a labor and employment attorney before an issue is created by poor documentation. 

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