Scenario: You have an employee who has worked with your company for two years. He typically does acceptable work – he’s not the proverbial “rock star” but he gets it done. Then the quality of work starts to slip. Paperwork isn’t being turned in on time or sometimes not at all. You give him the benefit of the doubt and assume maybe he is just distracted with personal matters and hope for him to get back on track. The issues continue for months before the frustration becomes overwhelming and you decide you just need to get rid of him. Besides, you’re in an at-will employment state! You meet with the employee, tell him you aren’t happy with his work, and part ways. Then a week later, you get a letter from the EEOC notifying you of a claim filed against your company for discrimination. What went wrong?
The above situation is not an uncommon story. Most employers aren’t looking to upset their employees and may feel like writing up an employee can be belittling. However, documenting concerns can not only protect your company from lawsuits but will also help realign your expectations with employees.
When you terminate an employee without any documentation on growing concerns, the employee may not be aware of their unsatisfactory performance. They may think, “My employer never said anything to me before about my work, why are they really trying to get rid of me?” This can lead to employees making assumptions about the “real” reason they were let go, which can easily include misguided suspicions related to discrimination against their protected class or retaliation for previously reporting a safety issue or harassment, which are reasons that can land an employer in hot water.
Additionally, employees should be provided feedback on the work they perform, for better or worse. By providing feedback, you have the opportunity to encourage good work ethic while correcting unacceptable behavior before it becomes a bad habit and a bigger issue. As an employer, you can provide this feedback by conducting regular performance reviews but sometimes concerns may need to be addressed in a timelier manner that should not wait until an annual review. Addressing these concerns can also help with employee morale; seeing a coworker violate policies with impunity could lead to reliable employees asking themselves why work so hard when someone else does nothing and still collects a paycheck, which can be detrimental to the workplace environment.
What Is Corrective Action?
Corrective action is the act of addressing and attempting to correct inappropriate behavior and can take the form of coaching, verbal/written counseling, suspension with or without pay, or dismissal. Many employers will utilize Progressive Corrective Action (also known as Progressive Disciplinary Action), which generally provides employees with the opportunity to correct unacceptable behavior while also alerting the employee to the consequences that may come should they not correct the issue. This type of policy involves outlining certain steps that will be taken as an employee violates company policies or performs unacceptable work. The most common steps consist of verbal warning, written warning, final written warning and/or suspension, and dismissal.
Although a Progressive Corrective Action policy requires an explanation of the type of action that will be taken, employers should include a statement explaining that steps may be skipped depending on the severity of the issue. While following the steps laid out in the policy may be appropriate for minor offenses such as repeated tardiness, crashing a company vehicle due to negligence such as texting while driving would most likely call for a final written warning even if it was the first infraction. However, employers should exercise caution when skipping steps laid out in the policy. If you decide that a no call/no show warrants termination on the first occurrence, you should be consistent and take this action for similar situations (unless the employee had a legitimate reason for not calling, such as being in the hospital) to avoid the appearance of discrimination or wrongful dismissal. If your company has multiple managers with the authority to issue corrective action, you should ensure that all managers are on the same page and are applying the policy consistently across all departments. Remember: a policy is only effective if it is applied correctly.
Steps to Issuing Corrective Action
If you have arrived at the decision to issue corrective action, the goal should be to solve the problem and maintain the relationship. There are several steps to consider:
- Approach the process with a clear head: When putting together corrective action, you want to remain as objective as possible. If you are angry about the situation, it can be difficult to maintain this objectivity. Remember, this documentation will be a part of the employee’s record and you shouldn’t assume no one will ever see it.
- Document the issue: Include who, what, when, and where and categorize the issue as related to performance, attendance, or conduct. Avoid general statements like “the employee comes in late all the time,” and instead opt for more concrete statements like “the employee was 30 minutes late for his last four shifts.” By documenting the issue in writing (even if it is a verbal warning) you are giving a concrete timeline of the employee’s behavior and the opportunities provided to correct concerns. You are also generating a paper trail should you ever have a claim filed against you, whether it is for unemployment or discrimination.
- Use company policies to support the action: While it is not possible to foresee every possible type of unacceptable behavior and put it into a policy, it is a good idea to have policies in place that generally outline what is considered unacceptable. When issuing corrective action, you want to tie it back to these policies when possible to show that the action was not an arbitrary decision.
- Set expectations: Corrective action should be an opportunity to get the employee back on the right track and show what is expected. You should include what you expect the employee to do or stop doing, the timeline in which you expect the behavior to improve, and the consequences should they not make the appropriate adjustments. Avoid using statements like “probation period” or “30-day review” as these can become contracts that hinder you from being able to take action until the stated time has elapsed. A recommended statement to include would be, “We will review these matters on an ongoing basis as necessary. Immediate, significant, and consistent improvement is necessary to avoid further corrective action, up to and including dismissal.”
- Deliver the corrective action: Once you have put together the corrective action, you should meet with the employee to discuss, preferably with a witness. Simply giving a form to your employee to sign and going about your business can come off as impersonal and seem like you are only doing this to create a paper trail for when you terminate them, not if. Explain the issue at hand, the relevant policies, and the next steps. If you have not already done so prior to this meeting, you should ask if the employee believes they have any barriers interfering with their ability to successfully perform their job and document their answer; this is to ensure the employee does not have a need for an accommodation due to medical or religious reasons and to document the need (or lack of need) should there be a claim made against your company later on. At the end, have your employee sign the corrective action acknowledging it was received and allow the employee to provide comments if desired. If the employee refuses to sign, assure them that their signature is not a sign of them agreeing with the corrective action and it is only their acknowledgment of receipt. If they still refuse, writing in “refused to sign” on the employee’s behalf and signing along with the witness is acceptable.
- Keep the corrective action in the employee’s file: Once the employee has signed the corrective action, add it to their employee file. If any type of claim comes up, you are ready with the documentation to show the steps you took to correct the issue and that the employee was informed each step of the way.
- Follow up: Make sure you evaluate if improvements have been made. If they haven’t, you may need to speak with the employee again or move to the next step in the corrective action process.
Corrective action does not always solve employee issues. Sometimes the employee will continue the unacceptable behavior until they are out the door. But sometimes, the action can serve as a much needed wake-up call. Either way, you will have documentation that may help protect your company from legal action should you ever find yourself involved in a lawsuit.
If you have specific questions on corrective action or are interested in ways that FrankCrum can help you with compliance questions or employee issues you are currently facing, please contact us. We're here to help!
