Interview with Paul Falcone Author of the book 101 Sample Write Ups for Documenting Employee Performance Problems

        

The importance of Paul Falcone's 101 Sample Write-Ups for Documenting Employee Performance Problems needs a bit of preamble and explanation. One of the major issues in the global workplace is employee relations. It's the main gripe on job site forums around the world, particularly in the US.

This situation reflects a legacy of The Bad Old Days when employee relations were very primitive, ineffectual management practices. They were and often still are stunningly inefficient and counterproductive employment policies, wasting resources and creating quite unnecessary stress and expense, as well as chronic inefficiencies and are often based on major injustices to staff.

They've also created the grounds for a lot of lawsuits. 70% of Americans who sue their employers win their cases. That's estimated to be 30% of the US workforce, at some time during their careers. Many of these lawsuits were literally created by truly abysmal employee relations practices.

This book is a real must-read for managers and supervisors, HR staff and people who own their own businesses . It contains systematic and thorough documentation for employee relations issues, and most importantly a thorough logical base for visualizing the entire employee relations paradigm as a whole.

1. In the introduction, you go to some lengths to make it clear that you're referring to 'progressive discipline', not the old-style arbitrary, destructive type. Can you give us a working example of progressive discipline in practice? At its core, progressive discipline is a fundamental element of what's known as 'workplace due process.' It stems from a 19th century legal concept known as the 'job as property doctrine,' which states that employment is such a fundamental right of American workers that it shouldn't be arbitrarily taken away without the protection of due process as afforded under the 14th Amendment to the Constitution. Affording due process means recognizing the employee's right to be informed of unsatisfactory job performance and to have a chance to defend himself and demonstrate improvement before some adverse employment action (like termination) is taken. It's against this backdrop that we measure fairness in the workplace: Employees generally need to understand what the problem is and what they need to do in order to fix the problem before they're fired. And that's only fair - No one would want to be terminated without at least having a chance to understand in advance what problems are jeopardizing his job. So if a company provides someone with corrective action regarding job performance, conduct, or attendance, for example, the individual will be placed on notice that he needs to make specific improvements in order to avoid any further, escalated forms of corrective action that could ultimately result in a termination for cause.

When done correctly, therefore, the corrective action stops bad behaviors and increases performance by setting clear expectations of what needs to be done to improve. In addition, progressive discipline is often provided hand-in-hand with some form of training or coaching to help the employee make a successful turnaround. That proactive outreach on the company's part demonstrates that the employer is willing to meet the worker halfway so that both sides could be successful.

2. Many employers seem to have trouble comprehending that 'performance problems' may reflect as much on their own training programs and lack of adequate support for staff as any actual employee issues. How can documentation spell out those issues for employers?

Companies are viewed as 'corporate citizens' by juries, and a good corporate citizen will typically be expected to provide some form of proactive rehabilitation for a failing worker. Unlike in the old days, it's not enough just to point out a problem and outline consequences for not meeting those expectations; instead, those good corporate citizens are expected provide the worker with the tools for success. Depending on the problem, those tools could include one-on-one training, a sponsored workshop on dealing with interpersonal conflict in the workplace, a copy of an attendance policy, or a book purchase on spreadsheet basics. Whatever the case, it's important that the company outline its proactive rehabilitation efforts in the corrective action notice to demonstrate its good faith in helping the worker improve. And don't forget that plaintiff attorneys will often argue that 'failure to train' may have played a significant role in the candidate's ultimate termination, thereby shifting the burden for improvement away from the plaintiff (i.e., your ex-employee) and back toward the company. In short, they'll argue that your lack of training set the individual up for failure - a failure, they'll argue, that could have been prevented with remedial training and support had you acted responsibly as a company.

3. Another point you raise is the strongly negative situations and environments created by punitive and evasive 'discipline' which doesn't even address performance problems. Can you spell out a chain of events which shows how documentation can help with these situations?

Historically 'discipline' in the workplace did indeed have a very punitive feel to it. Think of the worker who is sent home without pay for a week for his wrongdoing: That individual now has to explain to his or her family why daddy is home this week, why he'll have one week less of pay in his paycheck, and all of this will smack of humiliation and embarrassment and cause resentment and anger on the part of the worker. In reality, we're dealing with knowledge workers in a service economy, for the most part, so those old punishments from the days of a manufacturing-based economy and widgets falling off of conveyor belts no longer work. Instead, we've got to get employees to assume responsibility for their own actions. That's the ultimate key to successful turnarounds when using corrective action.

So if we document in our corrective action that we're willing to help the individual increase her performance by meeting one-on-one with her every morning for a week or by retraining her in a particular aspect of her job that may have missed awareness earlier, we make the increase in performance a shared goal. Yes, it's what we as a company expect from you, but it's also about how we're going to help you get there. . . Simply stated, when you can 'pierce their heart' and make an employee look internally for a solution, the problem will be fixed. If, instead, they're angry with or at you, then the problem may never be owned and rarely be fixed.

4. It's almost a tautology to say that employees don't get exactly encouraged by things like the infamous 'torture by performance review' scenario. It probably causes more people to quit the jobs rather than tolerate employer performance management practices. How can documentation improve this situation?

There's a lot of negative press about performance reviews, and a number of authors have written books recently saying that the whole process should be jettisoned. On the one hand, that may be understandable because many companies go through the process in a perfunctory and less-than-meaningful way. It's also much akin to report cards and standardized testing in schools - What will work to measure and increase students' performance is subject to debate, which is why some colleges won't consider the SAT in evaluating incoming students or provide traditional grades of A-F to measure student performance.

So that may be a healthy and welcome debate in terms of companies looking to better measure and improve employee performance, but this whole process is a lot easier than we make it out to be. Rather than going through the annual performance review because 'HR says we have to' and filling in circles on a document and then handing it over to an employee in order to justify giving that individual a merit increase, think of it this way .

Just like in school, students want feedback and structure to know how they're doing. But in the workplace, they're charged with evaluating themselves and feeding that information back up to their bosses, who serve as mentors and coaches rather than unilateral disciplinarians and decision-makers. First of all, employees would be responsible for completing their own self-evaluations before the annual review takes place. And second, employees can create interim assessments for themselves and their bosses once a quarter, twice a year, or just once a year as they see fit. These are adults, and rather than forcing them into mandatory drills to justify pay raises, why not focus them on (a) building their resumes and (b) building their self-evaluations so they could show how they're adding value to their own careers (via newly acquired skills and achievements) and to the company (via increased revenues, decreased expenses, or saved time).

The tool is simple way to gather data and focus your employees on garnering achievements and accomplishments that serve them first and their companies second. That's the healthiest order of demonstrating improvement, and the company and supervisor will always win. Remember, no supervisor or manager is responsible for motivating her employees - motivation is internal, and people are responsible for motivating themselves. However, as leaders in their organizations, supervisors and managers are indeed responsible for creating an environment in which people can motivate themselves. Using the shared documentation process in performance appraisal is the ultimate way of keeping everyone focused on the goal as well as the measurable outcomes to ensure that the goal was indeed reached.

5. You've devoted a specific section to Attitude, which many workers consider a basis for criticism by employers who can't find anything else to criticize. Can you give us an overview of the Attitude issues and fixes?

It's never wise to use the word 'attitude' when speaking with employees or documenting performance problems. First, it's such a subjective term that courts will typically dismiss documentation regarding 'bad attitude' as a simple difference in communication or work styles and consequently throw out or at least minimize the impact of any corrective action that the employer used to justify a termination. Second, 'attitude' is pretty much a fighting word: Tell someone they have a bad attitude, and their first response will be to defend themselves and cast that same aspersion your way. Therefore, when dealing with this particular issue, use the words 'behavior' or 'conduct' rather than attitude. Those are much more objective terms and far less likely to raise the ire of the recipient.

Next, remember that you have every right to explain your 'perception' of the individual's behavior. Perception isn't right or wrong -- it just is. As a result, you have every right to hold a conversation or document something like this: 'You appear to have very little patience for your coworkers when they come to you for help. From my vantage point, you often come across as having a chip on your shoulder, almost as if you're challenging me to disagree with you. As a result, I have witnessed your coworkers cutting a wide swath around you and working around you in order to get answers to issues that rightfully belong in your area. As such, you appear to be impeding the performance of the whole team. . .'

Notice that these aren't direct and concrete statements: 'You have no patience, a chip on your shoulder, and you impede the performance of the group.' While those statements, in and of themselves, may not be totally inaccurate in your opinion, as 'absolute' statements they leave no room for rebuttal. More important, those types of sweeping generalizations will also force the employee to put up stiff resistance rather than assume responsibility for the perception problem that exists. So the proper documentation plays a subtle but very important role in terms of inviting the individual to turn things around and also protects your company legally when needed to defend a termination decision. After all, both judge and jury look to see how 'harsh' or 'judgmental' the employer appears to be, and they need look no further than the documentation outlined in corrective action and/or performance appraisal documents - the more objective and less judgmental, the better.

6. Performance also inevitably refers to productivity. Your book addresses this major issue in depth. Can you summarize how documentation works as a mechanism for improving productivity?

When productivity declines, workers will often hide behind the problem and not necessarily escalate the issue to your attention in an effort to get help. Performance tends to be easier to address than conduct because it's based on measurable and known outcomes. If a sales person, for example, has monthly scorecard goals established and fails to meet those goals, simply documenting the performance expectations as a reminder plays a large role in according the individual with workplace due process. Further, your conversation with the individual will likely lead to problem areas where he or she needs help in the form of additional structure, direction, or support, so you once again have an excellent opportunity to document your affirmative efforts at helping to rehabilitate the individual. And of course, if all else fails and the individual can't or won't meet the performance standards established, then you can rest assured that your application of corrective action should go a long way in insulating your company from any wrongful termination challenges that may come your way.

7. Your book will save people time and make sure they do cover all the fundamental issues in writing up performance problems. These write ups form the basis of subsequent action. How do employers do a quality check on their write ups to make sure they've got everything right? Most books on employee relations are written by employment defense lawyers who often present the legal theory involved in the main body of their text. Occasionally the reader will be lucky enough to see a short example of that that documentation looks like in the footnotes. The purpose of this book was to turn that paradigm on its head: The samples are the star of the show, and the legal theory often falls to the footnotes at the bottom of the page. It's important to remember that when it comes to corrective action, similar infractions should be documented in a very similar format. So whether you're facing a sales performance, workplace conduct, or attendance issue, the facts will change of course in the narrative section of the document. However, the 'expectations' and 'consequences' sections of the corrective action memo will remain virtually the same, and that's why you want a structural template plus pre-drafted sample language to walk you through the various employee relations challenges that you're likely to face.. And that's the key to consistent documentation: You want your documented employer interventions to be consistent across the board, and you also want to save yourself a lot of time in creating well documented corrective action notices that will withstand legal scrutiny. In short, it's always best to document clear expectations and consequences, along with the employee's side of the story, along with your proactive efforts of rehabilitating the individual. That's a win-win-win for the company, employee, and for legal insulation purposes. And it's also the best possible way to ensure that your corrective action meets consistent quality standards time and again.

8. Can you explain the Excessive, Unscheduled Absence: 'No Fault' concept, and how it operates in the documentation scenario?

Many companies don't want their supervisors to have to make subjective decisions about whether a particular absence is justified via an employee's excuse. So rather than using an 'excuse-based' system that looks at the merits of each occurrence of absenteeism, the company employs a 'no fault' system where the reason for the termination isn't at issue - simply the number of times that the worker misses a day of work. That takes the personal and judgmental elements out of the evaluation process and also helps avoid any claims of favoritism or potential discrimination.

Let's say a company provides workers with corrective action as follows in a rolling calendar year: five incidents of unscheduled absence equal a verbal warning, seven incidents equal a written warning, and nine incidents equal a final written warning. Anything over that ninth incident in a rolling calendar year will typically justify termination. The corrective action at each step imposes some greater or 'stepped up' consequence until, at the final written warning stage, the employee is notified that this is his last chance and that his position is now in immediate jeopardy of being lost.

Of course this has all gotten more complicated since the passage of the Family Medical Leave Act (FMLA), which allows employees to take intermittent time off when justified by a healthcare provider's medical certification. Under those circumstances, time off that is protected by FMLA cannot be deemed 'disciplinary' under to the company's attendance control policy. If this sounds complicated, that's because it is - and it becomes all the more important for companies to properly document which incidents are considered excused by FMLA vs. which incidents count as violations of the organization's attendance control policy.

9. Discharge for Cause: Substandard Performance is a hot potato for employers. Can you outline how they ensure proper documentation, and are any supplementary documents or references to prior documentation required?

Courts will typically look for an employer to have provided its worker with 'workplace due process' prior to moving to termination, and corrective action is the written notification that performance is not acceptable, must improve to a particular level, and may result in termination if those expectations aren't met. Many employers have mistakenly assumed that conversations with employees would serve as workplace due process: 'We must have met with her a hundred times about this problem, but the situation never got better and we ultimately terminated her.' Unfortunately for those companies, courts and arbitrators will argue that if it wasn't written down, it never happened. And as you could imagine, memories change a lot in the six to twelve months that it takes to get to a hearing or trial.

The manager will argue that the employee knew that her position was in jeopardy and would be fired if substantial improvement didn't occur; the employee, in comparison, will only have a foggy recollection of 'coaching sessions' where she was encouraged to perform better, but she never heard the words that her job was in jeopardy in any way. Hence, the documentation becomes a critical link in the entire workplace due process scenario. And the strongest statement used in concluding most corrective action notices is: 'Failure to demonstrate immediate and sustained improvement may result in further disciplinary action up to and including dismissal.' This way the employer can very successfully argue that the individual was indeed placed on notice that her job was indeed in jeopardy. (And yes, it always helps to refer back to prior corrective actions and employer training interventions to show how you've gotten to this particular stage of discipline.)

Remember as well that plaintiff attorneys usually look for a 'triple roostertail' of sorts: wrongful termination (based on inadequate written corrective action) plus discrimination or harassment of some kind plus retaliation of some sort seems to be the preferred route for plaintiff attorneys to make money on wrongful termination cases. The 'wrongful termination' piece may only allow for compensatory damages, but the harassment and discrimination elements open the way for punitive damages, which is what plaintiff attorneys make a living. In short, proper documentation showing that the employer accorded the worker with workplace due process will go a long way in staving off any wrongful termination charges, and that may help significantly in dissuading a plaintiff attorney from taking on the case in the first place.

10. Summary Discharges can be complex. How is documentation for these events prepared to provide a full, legally operative basis for dismissal?

Summary dismissals are usually the result of conduct, not performance, problems. Here's how it works: Courts typically expect a company to take workers through whatever steps are part of the company's progressive discipline policy when it comes to performance and attendance issues. The 'three strikes and you're out' approach is a very American concept, and when performance problems arise, companies often respond with (documented) verbal, written, and final written warnings.

With conduct issues, however, there isn't necessarily a similar expectation: If someone steals from the company even once, they're fired. Period. There's no need for prior corrective action. Stealing is considered a 'summary offense,' meaning it rises to the level of immediate termination even if there is no prior corrective action on file. Ditto for embezzlement, severe cases of sexual harassment, and egregious misconduct. However, supervisors often forget that they have the discretion to distinguish between performance and conduct challenges. For example, if a subordinate yells at a supervisor in front of the whole team, that supervisor has no obligation whatsoever begin the corrective action process with a verbal warning just because it's the first time this ugly issue rears its ugly head. Instead, depending on the circumstances and the offending employee's tenure and performance history with the company, outright termination may be the responsible employer reaction to such outlandish behavior. And if the company decides not to terminate for whatever reason (for example, the employee involved has lots of tenure and an exemplary employment record), it would be very reasonable to begin corrective action at the final written warning stage - even for this first offense. In such cases, the language included might read: 'If you ever again engage in behavior that could appear to be insubordinate, disrespectful, or hostile toward your supervisor or any other members of the company, if you appear to engage in a 'public shaming session' of any sort by acting in a condescending manner or by humiliating others loudly and in front of their peers, you will be immediately dismissed.' Now that's a record you could stand on should this employee ever again engage in similarly unacceptable behavior.