THE IMPORTANCE OF DOCUMENTATION DURING THE DISCIPLINE PROCESS

By Marie Kraemer ^Click
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Introduction

Employee discipline generally is seen as an unpleasant task for most supervisors. The issue of discipline and how it is handled will have a far-reaching impact on the entire organization. Therefore, it is imperative that firms develop even-handed and standard policies that apply to all employees. The employer’s goal is to treat all “similarly situated employees” alike in like situations. ^Click
here Consistency toward all similarly situated employees in disciplinary procedures is one of the best lines of defense against claims of discrimination brought by an employee.

This article discusses the documentation procedures used during a firm’s attempts to work with nonexempt employees with work related performance problems. If followed, these procedures may help the firm prevail against claims of wrongful discharge, breach of contract and discrimination made under Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352) (Title VII). ^{Click here} The goal of documentation during the disciplinary process is to clearly memorialize the firm’s efforts to address these questions:

1. Are there performance/behavior expectations relating to the employee’s position?

2. Was the employee made aware of those expectations?

3. Has the employee failed to meet those expectations?

4. Was the employee informed of the consequence if he/she failed to meet the expectations?

5. Was the employee given ample time and opportunity to improve/change?

6. Did the employee improve/change the behavior? ^[1]

A Critical Element of Progressive Discipline: Documentation

No discussion of progressive discipline can begin without a thorough exploration of documentation. The most essential guideline for handling any and all disciplinary action is documentation. When followed regularly, accurate and contemporaneous documentation will add authenticity and credibility to the events leading to the disciplinary interview and will assist the firm in defeating any claims of discrimination brought by the employee. Furthermore, documentation will make it difficult to doubt the motives of the manager. Therefore, it is recommended that all supervisory personnel be specifically trained to conduct disciplinary interviews and document those interviews. ^Click
here Taking notes during or immediately after a discipline conference will create a record of what happened and support personnel decisions. Having a journal at hand for keeping dated notes of any and all conferences that take place in the manager’s office should become routine, and in a litigated matter, could prove invaluable. Retrieval of those notes when needed will provide detailed and recorded observations that memory cannot provide.^[2] While showing fairness and equity, documentation reflects sound and rational judgment on the part of management. Notes, journals and observations are the “back-up” to any memorandum. Therefore, they should be kept as part of the supervisor’s file in a secure area.

Before the procedure of progressive discipline becomes necessary, it is strongly recommended that periodic performance reviews with all employees be conducted and documented in order to ensure that the employee is fully aware of any failure to meet expectations.^[3] A job description may be utilized in these reviews to keep the employee focused on the requirements of the position. These review conferences, when made a part of the employee file, will support the position of the employer that the “surprise element” has been eliminated from any disciplinary action. Before a supervisor submits a performance review, the document should be carefully reviewed to insure that any instance of warning or discipline, and the outcome, is noted and that the review is neither inaccurately overly-positive nor overly-negative.

Throughout this process, there should be consultation with the firm’s employment law attorney, whether in-house or retained.

Progressive Discipline Procedures

Phase 1. Oral Warning

Once it has been determined that there is a performance issue or a behavior problem, the supervisor must take appropriate action immediately. In some instances, informing the employee of the problem or the behavior is sufficient to correct the situation. All the facts relating to the situation in question should be verified and available prior to any meeting. Allegations regarding behavior problems presented by others must be thoroughly investigated, and those individuals should be interviewed and their statements documented. Performance problems should be presented to the employee with supporting documents, such as attendance records, examples of errors in work product, supervisory complaints, etc., in order to eliminate any contradictions by the employee.

The meeting should take place in private and should be conducted in a positive manner, with the emphasis on what the employee can do to correct the problem. This first meeting can be treated as a counseling session, with the employer showing support and encouragement for change. A timetable should be set for the correction, keeping in mind that too short a time may not produce the desired result and too long a period may dilute the seriousness of the warning and, in extreme cases, leave an undesirable employee on the payroll for an indefinite period of time.

The supervisor must document the session and clearly note the requirements discussed and the expectations made of the employee. ^Click
here Any comments and/or promises made by the employee during this session should be documented, signed by the employee and made a part of the employment folder for future sessions.

Phase 2. First Written Warning

If problems continue, the supervisor should arrange a second meeting with the employee. An appropriate manager in a higher level of authority (i.e. HR director, administrator, partner/shareholder) should be included in this meeting, signifying a more formal step in the disciplinary process. At this meeting, it should be clearly identified that the problem still exists. This meeting should be held in a calm and quiet manner, without hostility. Nothing should be said that would create an emotional atmosphere or invite inappropriate behavior. The documentation of the first session should be presented to the employee to reinforce that expectations were set and agreed to by the employee, but which have not been met. The employee should be given an opportunity to state his/her position and/or give an explanation of why the improvement has not taken place.

A written warning ^Click
here should be prepared in advance. This should clearly set out the seriousness of the problem or behavior, contain a statement of agreement for a solution or required change, and specify the time frame for a program which will produce immediate improvement. The written warning should also include a statement reflecting the consequences, up to and including termination, for non-compliance. The outcome of the meeting should be documented and the finalized memo signed by the employee. Should the employee refuse to sign, the manager should note on the document that the employee was presented with a copy of the memorandum but refused to sign. The employee can be asked to sign this note, in lieu of signing the memorandum itself.

Phase 3. Second Written Warning and Last-Chance Agreement

Despite counseling, warnings, and discussions of potentially severe consequences, it is entirely possible that the employee cannot or will not meet the expectations discussed during previous meetings. Depending on the behavior or the severity of the performance problem, the employer may wish to make a last-chance offer to the employee. This offer, and any subsequent agreement between the firm and the employee, is often memorialized as a last-chance agreement.

Again, a conference should be held with the employee and in the presence of another manager, who functions or serves primarily as a witness. All previous documentation should be reviewed and discussed in depth and the new instances of inappropriate behavior or substandard performance should be presented. In many cases, an employee may improve for a period of time and then lapse into the unacceptable behavior again. If a suspension without pay would get the attention of the employee, this would be the time to institute that penalty. However, be aware that the classification of exempt employees may be affected in certain cases, if they are suspended without pay, based on the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA).^[4]

If the firm elects to give the employee a final opportunity to improve, the employer should prepare a memorandum outlining a last-chance agreement. ^Click
here This document should clearly state that this is the last discussion of these matters and that if the behavior/performance problem is exhibited even one more time, the employee will be discharged immediately. The employee should sign this document and, as before, should the employee refuse to sign, a note should be added to the bottom of the document stating that the employee so refused. The employee should then be requested to sign that note. Always provide a copy of this entire document to the employee.

If, on the other hand, the employer has come to the conclusion that the actions of the employee demonstrate that there will be no further improvement and that other penalty options would be non-productive, a decision may now be made to discharge the employee following a final review of all documentation and the procedures and processes followed.

Review of Progressive Discipline Process

Before proceeding to any action which would create a tangible change in an employee’s situation, the administrator should thoroughly review the disciplinary process which has been followed, including the following questions as they relate to the situation at hand:

1. Was the employee adequately warned?

2. Was the firm’s rule or order reasonable and consistent with the approach taken with all similarly situated employees?

3. Did management investigate?

4. Was the investigation fair and objective?

5. Did the investigation produce substantial evidence or proof of guilt?

6. Were rules, orders and penalties applied evenhandedly and without discrimination?

7. Was the penalty reasonably related to the seriousness of the offense?

8. Has the process been thoroughly documented?

Range of Alternatives if Problems Persist

In the final phase of the process, the following range of possible discipline should be considered:

ü Permanent written reprimand to employee file;

ü Suspension without pay. Caution is advised if you are considering this discipline for an exempt employee. Case law holds that disciplinary unpaid suspensions during weeks where the employee has performed work may jeopardize the employee’s exempt status under the FLSA.^[5]

ü Transfer;

ü Demotion;

ü Wage reduction;

ü Last-chance agreement; and

ü Termination.

Case Studies and Examples of Documentation

To illustrate the documentation process in action, two examples are presented.

Case Study 1: Discipline Involving Alcohol-Related Performance Problems

Case Study 1 involves alcohol related performance problems and documents the discipline process from problem identification to termination.

Here is the initial memo that identifies the problem and documents the firm’s response. ^Click
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In the following weeks, the employee’s behavior and performance improved. However, the performance and behavior problem subsequently re-emerged. This memorandum explains the HR director’s response. ^Click
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Again improvement was shown, but alcohol-related problems once again surfaced. This memorandum to the file continues documentation of this problem and begins the final stage of discipline. ^Click
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A final incident brought this disciplinary action to a conclusion. The employee was found unconscious by a co-worker on the floor in front of her desk. She was seen by others, helped into a chair, then to her feet and to a taxi by another co-worker. All witnesses to this incident were interviewed and their statements placed in the file. ^Click
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Note: This progressive discipline procedure covered a span of approximately four months. At each conference, the employee was reminded of prior conferences and her promises to improve. At one conference she refused to sign the memorandum until she could show it to her attorney. At that point, it was noted at the bottom of the document that she would not sign until her attorney had seen it. She then signed that note. Though some of the documentation seems cumbersome, it clearly and accurately sets out what was said at each interview and provides a clean file for any possible future claims.

It should be noted that, subsequent to the discharge, a phone call was received by the HR director from a family member of the employee suggesting that she did not receive sufficient help with her problem. The memoranda dated October 27 and November 13 specifically dealt with this issue and the firm’s support of treatment and medical leave if necessary. Therefore, there were no claims arising out of this situation.

Case Study 2: Discipline Involving Refusal by Employee to Comply with Work Standards due to Health Problems

The following example depicts an actual chain of events surrounding the claim of a secretary that she could not do tape transcription as a result of a disability. The secretary was hired as part of a team merger (lateral hire) consisting of a partner (who required only hand dictation) and an associate (who used only tapes). Because the group came as a team, the normal testing and interviewing process did not take place, and the firm was not made aware that in their previous firm, all tapes from this team were transcribed in an overnight word processing area. The employee stated that when she put on earphones she heard noises in her head. Several types of earphones were provided for the employee, all of which produced the same result. As a result of her refusal to complete tapes, other secretaries had to transcribe the associate’s work. A conference with the HR director and the employee was scheduled, and the job description of all secretaries in the firm was reviewed. Additionally, a request was made for medical confirmation of the disability from a doctor of the employee’s choice. When no confirmation was produced, the director consulted with the firm’s employment law attorney and a discipline procedure was outlined. The dates reflect the firm’s commitment to resolve this issue. ^Click
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Before the conference, the employee reported that she had made an appointment with a physician for November 11. However, this date was not acceptable to the firm. The firm made an appointment for the employee to see a doctor at the firm’s expense immediately. This memo addresses the issue. ^Click
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This short memo to the file further documents the disciplinary procedures. ^Click
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The doctor submits a report to the HR director that the employee has no physical hearing problem. The HR director, employment law attorney, and the secretary’s lawyers meet to discuss the report and available alternatives. ^Click
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Finally, the employee is presented with the options developed by the management team. This memo to the file documents the meeting. ^Click
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Approximately two weeks later, the employee reported that she had secured a position in a corporate environment that would not require tape transcription.

No claims resulted from this separation. The employee was given the opportunity to seek new employment and resign from the firm. This progressive discipline process took approximately four months, and despite the danger of a discrimination claim for disability, ended without cost to the firm except for the medical examination.

Progressive Discipline Policy

Sample Policy Statement for Progressive Discipline

The firm may choose to publish a policy statement in its employee handbook, in its supervisor’s procedural manual, or both. Here is a sample policy statement:

“The firm expects all employees to comply with the firm’s standards of behavior, demeanor, and performance. Any noncompliance with these standards must be corrected. Under normal circumstances, the firm endorses a policy of progressive discipline in which it attempts to provide employees with notice of deficiencies and an opportunity to improve. However, the firm does retain the right to skip steps in the normal discipline progression based upon the severity of the misconduct. This policy does not modify the status of employees as employees-at-will or in any way restrict the firm’s right to bypass the disciplinary procedures suggested.”^[6]

Determine if Your Firm will Publish Disciplinary Procedures

Individual firms/corporate legal departments will determine whether to publish disciplinary procedures in policy manuals. Many employers feel more comfortable when all policies are clearly set out in employee manuals, reasoning that if the policy is published it not only sets out the firm’s intent, it also sets a standard for all employees. In this scenario, it might be helpful to add language indicating that the policy will be followed in “all but exceptional circumstances” in order to avoid a later charge by an employee that the employer did not follow its published policy. Should the employee be subsequently terminated for a reason not included in the handbook, or by not following the steps outlined, the employee may bring suit alleging the policy created either an express or implied contract. Depending on the language of the policy, some courts may find that the employer created and violated an implied contract. It is best to avoid the phrases “just cause” or “good cause” when describing reasons for discharge in a policy manual. If the employer feels it is necessary to publish rules, it is advisable to state that these rules are only examples of behavior that might lead to termination.^[7]

Some firms prefer not to publish disciplinary procedures in their employee handbook in order to provide supervisors with the flexibility to evaluate each situation individually. Additionally, an employee may charge that the employee handbook establishes a contractual agreement and all grievance procedures must be exhausted prior to dismissal.^[8] Therefore, it is always prudent to have a disclaimer ^Click
here indicating that there is no express or implied promise on the part of the employer to exhaust all procedures in any given situation.^[9]

Conclusion

It would be wrong to assume that if all the steps described in this article were followed, the possibility of a claim being filed by a terminated employee would be eliminated. What is vitally important is to conduct non-confrontational interviews in the presence of a witness, to clinically document those interviews immediately after they occur, and to treat all similarly situated employees alike in similar situations. Throughout the progressive discipline process, consultation with an employment lawyer, either in-house or retained, is essential to achieving the goal of terminating an employee with a completely defensible file.

Appendices

Similarly Situated Employees: A Checklist of Considerations for Resolving Discipline Issues

Ø Interpret and apply disciplinary policies with no favoritism or arbitrary action.

Ø Treat “similarly situated” employees in the same manner. You must consider these characteristics of a “similarly situated” employee as you craft your response to a performance or behavior-related incident;

· Nature and severity of incident,

· Past performance and disciplinary record of employee,

· Job duties and status of employee,

· Length of employment of employee,

· Status or position of employee within the firm.

Retain and publish your firm’s right to discipline employees, as the firm deems fit. Reiterate and reinforce the “employment at will” doctrine.

Supervisor training is essential to ensure that disciplinary policy and procedures are administered/applied in a consistent manner.

Supervisor’s Role as Independent Authority and Initial Arbiter of Disciplinary Process

Ø Identify performance and conduct problems.

Ø Determine appropriate response.

Ø Respond to performance or conduct problem in a timely fashion.

Ø Counsel employee about problem(s) and how to improve:

· Keep remarks objective and factual.

· Focus on issue at hand, either performance or behavioral.

· Decide with employee a timeline for corrective action.

· Clearly state consequences for continued performance or behavioral problems.

· Document incidents consistently. State how it related to employee’s job, effect of incident on productive work environment, your supervisory action, consequence of continued problems, etc.

Ø Review and document any discipline issues at next performance review. It is critical that employee records consistently and accurately identify disciplinary problems and the efforts to correct the behavior.

Ø Firm should determine what level of supervision and consultation is appropriate between the management team and supervisors. Who is authorized to implement warnings, written memorandum in file, suspensions and terminations?

Ø Any behavior of an employee involving harassment must be immediately reported to the firm’s legal administrator and/or managing partner.

Source: HR Policy Answers^TM on CD, Personnel Policy Service, Inc. Louisville, KY. 2001.

Supervisor Training

The supervisor's ability to conduct effective performance evaluations and disciplinary interviews is essential to the success of any progressive discipline component of employee appraisal. Evaluations and disciplinary interviews affect morale and performance, and are a potential source of legal liability for the employer. Although it is common practice to judge the performance of supervisors and managers partially on the basis of how they perform these roles, few employers provide adequate training in how to use their appraisal and discipline systems.

Three sources for information on supervisory training are:

Society for Human Resource Management (SHRM), 1800 Duke Street, Alexandria, VA 22314, (703) 548-3440 (Web site at www.shrm.org). ^{Click here}

American Society for Training and Development (ASTD), 1650 King Street, Box 1443, Alexandria, VA 22313-2043, (703) 683-8100 or visit the Web site at www.astd.org. ^{Click here}

Association of Legal Administrators (ALA), 175 E. Hawthorn Parkway, Suite 325, Vernon Hills, IL 60061, (847) 816-1212 or visit the Web site at www.alanet.org. ^{Click here}

Source: HR Policy Answers on CD, Personnel Policy Service, Inc. Louisville, KY. 2001

Verbal Counseling Memorandum

MEMORANDUM

TO: Employee

FROM: Supervisor

DATE:

RE: Report of

____ Counseling Session

____ Warning Notice Session

On _________________________, a conference was held to address the following unsatisfactory aspects of your performance/behavior.

(Here insert the problems needing correction.)

The following expectations were discussed and it was agreed that the following corrective actions would commence immediately.

(Here list the corrective actions needed to improve performance/ behavior.)

On ________________________, a follow-up conference will be held to review the results.

I acknowledge receipt of this warning and notice of follow-up conference.

____________________________________ ______________

(Employee Signature) (Date)

First Written Warning

MEMORANDUM

TO: Employee

FROM: HR Director or Appropriate Manager

DATE:

Re: Report of second warning session of performance/behavior problems

On _____________, a counseling session was conducted to address certain unsatisfactory aspects of my performance/behavior. Those problems are as follows:

(Here insert the problems precipitating the situation.)

I agreed that improvement in these performance/behavior problems would commence immediately. To this date, I agree that the following unsatisfactory issues are still unresolved:

(Here insert the unresolved issues.)

I agree that these performance/behavior problems need to be immediately corrected, and I will take the following steps towards immediate change. I understand that failure to improve the unsatisfactory performance/behavior within __________________ will result in further disciplinary action, up to and including termination.

I have read the above, understand the issues, and have received a copy of this memorandum.

______________________ ____________

(Signature of employee) (Date)

Should the employee refuse to sign, the manager should note on the document that the employee was presented with a copy of the memorandum but refused to sign. The employee can then be asked to sign this note.

Final Warning

MEMORANDUM

TO: Employee

FROM: H.R. Director

DATE:

RE: Final Warning Session and Notice of Last-Chance Agreement

On _________________________, a counseling session was conducted, and on ____________________________, a follow-up conference was held to address certain unsatisfactory aspects of my performance/behavior. Those problems are as follows:

(Here insert the problems precipitating the situation.)

I agreed that improvement in these performance/behavior problems would take place immediately. To this date, I have been unable or unwilling to improve those problems. On ___________________, I was warned that unless there was immediate improvement, further disciplinary action, up to and including termination, would result.

In light of the above, I agree that if there is even one more instance of any one or more of the problems listed above, my relationship with this organization will be terminated immediately.

I have read the above, understand it, and have received a copy.

_____________________ ____________

(Signature of employee) (Date)

Discipline Involving Alcohol-Related Behavior

What follows is a description of an actual chain of events precipitated by an employee drinking in the workplace. The scenario begins with a visit with the HR director from the direct supervisor and the employee. This can be recognized as a counseling session described in Phase I above. The dates listed will demonstrate the time frame between each session of the progressive discipline process

Notes from the diary of the HR Director

10/21 The employee arrives at the office of the HR director with the supervisor. The employee is visibly upset and incoherent. The supervisor reports that there has been a drop in work performance and a serious lapse in attention to detail. In addition, previous conversations with the employee have led the supervisor to believe that the employee might be harmful to herself. At this session both the HR director and the supervisor encourage the employee to get to a hospital and ask permission to call the firm’s Employee Assistance Program (EAP). [Read the ALA Management Encyclopedia^SM article, “Employee Assitance Programs.”] Programs.Permission is given and contact is made with the EAP who arrange for immediate attention at the emergency room of a local hospital. The supervisor accompanies the employee to the hospital. The HR director contacts the family to report that the employee is in Emergency and someone should meet her. Employee is hospitalized for a short stay at a rehabilitation hospital.

10/27 The employee returns to work stating that she has been placed on medication and is feeling better and ready to handle her position. A meeting is immediately scheduled with the employee, the supervisor and the HR director.

Written Warning to Employee Concerning Behavior and Performance Problems

Memorandum

TO: Employee

FROM: HR Director

DATE: 10/27/__

RE: Return to Work

This memorandum will constitute the terms of your continued employment with _________. In light of previous job performance problems arising from your having come to work under the influence of alcohol, which have led to trips to the emergency room and/or hospitalization for you, the firm now sets the following requirements:

You will enroll in and continue to participate in a qualified program for the treatment of alcoholism.

You will arrange for reports to be completed and provided to us by an authorized person in that program stating that you are a current participant in good standing.

You will report to work each day alcohol free and remain so during the workday.

Your job performance must demonstrate immediate improvement to, and then remain at, a satisfactory or better level, with particular emphasis on attention to detail. Attorney requests must be completed immediately, or your supervisor must be informed of any incomplete work prior to your leaving your desk for the day or for time off.

You will comply with all other policies, procedures and job requirements to which other employees at ______________________________ are subject.

Should there be any deviation from the above guidelines at any time in the future, your position with the firm will be immediately terminated.

I have read the foregoing guidelines set down for my continued employment and I understand them.

________________________ ___________

(Employee’s Signature) ( Date)

MEMORANDUM

TO: Employee

FROM: HR Director

DATE: 11/13/__

This memorandum will document the events that took place yesterday.

On Thursday November 12, at approximately 4:30 p.m., your immediate supervisor suggested that you visit my office after your admission to him that you had been drinking. You came to my office and said that you were feeling sad and inquired about a possible place that the firm might have where you could stay if your home life changed. I told you that the firm did not maintain such a place and asked if you needed help and if you were continuing your AA program. You said that you were, but you exhibited behavior during that conference which was obviously due to intoxication. I reminded you of our previous conference in which you assured your supervisor and me that there would be immediate improvement in this problem.

Subsequent to our conference you went back to your desk where I am told that you lost consciousness at your computer. Your immediate supervisor observed your condition, as did three other employees. Your supervisor then assisted you to a taxi where your destination was the Emergency Room. During the trip you said you felt faint, and when your supervisor reached for your bag he discovered a half filled bottle of vodka.

Having liquor in the workplace is a clear violation of work rules and cannot be tolerated. Similarly, the behavior exhibited by you yesterday was unacceptable and cannot be tolerated. We recognize that you have a problem, and the firm is willing to support you towards the solution of that problem. It is recommended that you seek immediate medical treatment, whether an outpatient or in-patient program in order to deal with this problem. If it is necessary for you to take a leave of absence, the firm will support that request.

You should understand that your seeking this treatment continues to be a condition of your continued employment with this firm. Should the behaviors that were exhibited by you yesterday recur even one time, your position will be terminated.

I have read the foregoing memorandum and understand that I must comply with the contents in order to maintain my position.

_______________________ ________________

(Employee’s Signature) (Date)

MEMORANDUM

TO: File

From: HR Director

DATE: 1/15

Re: Employee

On January 14, after receiving independent reports from two people in the firm that they had smelled liquor on the employee’s breath, an interview was scheduled with the director of administration, the employee and me. The reports were explained to her, and she was asked if she had been drinking in the past 24 hours. She said she had not been drinking and wondered who could have told him that.

The employee said that she has been going to AA meetings at two locations, and said that it upsets her to think that people are aware of this problem and that they are making such reports. She asked if her performance was affected in the last two days and was told that two other people told the administrator that she smelled of alcohol and that the administrator, himself, had noticed that she had been somewhat confrontational when he spoke to her in the morning.

The employee said that she would be happy to breathe on him if he wanted her to and she offered to let us speak with her psychiatrist. At this point, her voice was very shrill and she was visibly shaken by the conversation. She said she would like to put this to rest and we could contact anyone we want. She said that some of the medication she is taking might produce this smell. She also said that she ate cereal in the morning and poured some vanilla toffee syrup that was a Christmas gift on it. She wondered if that might have caused the smell. She said that she was very upset by this whole thing and the fact that the administrator was involved, because she never wanted him to know about this problem.

It was suggested that she go home and settle herself. She said that she would rather stay at work because she had things to finish and did not want to leave them. I then suggested we go back to my office so we could contact her doctor.

In my office, we called her doctor who was busy. While waiting for a return call, we continued to speak. She began to cry and said that she could not understand why people were reporting her. She said that she was very tired, having had only three hours of sleep. She said that she had tried to be very good and was going to meetings and seeing her doctor and taking her medication. She said the medication would make her sick if she drank while taking it.

At this point her doctor called and I explained the situation to him and asked him to confirm that she had been under his care and asked for his perception of her condition. We spoke on the speakerphone and the employee confirmed that she was releasing him to speak about her. The doctor said that he last saw her on December 9 or 10 and she was sober and was going to meetings. He said that she had an appointment on January 6, which she missed. She has rescheduled that appointment for January 20. The doctor said she was on medication that would react negatively with drinking. He said that since he had not seen her since early December, he would have no way of knowing whether she was taking her medication, but that at that time everything was fine. He said the only way to determine if she had been drinking was to have her take a Breathalyzer test. The employee said at this point that she takes her medication every day. She also said that she has not had any alcohol for “God knows when.” She said she goes to meetings every day during the week.

After the phone call the employee composed herself and went back to work. Before she left she said that she hoped this would go away because it was very upsetting to her.

MEMORANDUM

To: File

From: HR Director

DATE: February 9,

RE: Termination of Employee

Today, with ________________________________ as a witness, the HR Director terminated _______________________________. We explained to her that certain events of Friday had created the need for someone to look into her desk drawer for her purse so she could be sent home. While in that process, bottles of liquor were found in her desk. This was clearly a violation of work rules, set out both in our policy manual as well as in the memoranda which she had received on October 27 and November 13.

The employee said that the bottles were from before and she should have gotten rid of them, but did not. She also said that she was taking medication and that was why she got sick on Friday.

The HR Director told her that the alcohol in her desk was the factor that caused her termination and that the decision had been made and would not be changed.

The employee was given insurance conversion papers and told her that our reference policy was to give dates of employment, position and to confirm salary. She was then escorted to her desk and out of the space.

Discipline Involving Refusal to Complete Assignments

MEMORANDUM

TO: Employee

FROM: HR Director

DATE: 10/14

Re: Medical Confirmation

As you know, we have been awaiting medical certification confirming that you have a condition that precludes you from transcribing tapes in the normal fashion. To this date, certification from a qualified physician has not been forthcoming. This memorandum is to inform you that unless we receive such certification by Friday, October 17, the firm will require you to perform this function of the job description for secretaries. I am enclosing a copy of that job description for your review.

Please understand that the firm and your attorneys have accommodated you on the basis of your personal description of your condition as long as we reasonably can. We must be provided with written certification from a physician that you have a condition that prohibits you from fulfilling the job description enclosed. Failing that, we will have no choice but to require you to transcribe any and all tapes which are generated by your attorneys, at your desk, using any one of the several earphones with which you have been provided.

Unless this is done, we will be forced to re-evaluate your position with your current assignment, and with the firm.

MEMORANDUM

TO: Employee

FROM: HR Director

DATE: 10/22

I have discussed your recent memorandum regarding a medical appointment on November 11 with your attorneys. Since our original request for medical confirmation of your condition dates back to August 4, we all agree that this new date is too distant.

The firm has therefore arranged an appointment for you on Oct. 29 at 8:00 a.m. with Dr. _______________________. Hearing tests will be conducted and you will have a visit with Dr. _______________________. He will then answer the question whether there is anything about your medical condition that limits your ability to perform your job functions, including transcribing dictation tapes. The firm will pay costs for this visit.

Please arrange to be at Dr. ______________________________'s office, at _____________________ at 8:00 a.m. on October 29.

MEMORANDUM

TO: File

FROM: HR Director

DATE: 10/22

Today, with ____________________________as a witness, I informed ___________________ that the firm had made an appointment for her with Dr._______________. I told her that the appointment that she had made for November 11 was determined by her attorneys to be too long a time to wait and that the firm had decided to pay for this examination so that we could come up with a final decision. Meanwhile, in light of the fact that others would be doing her tapes until we had a diagnosis from Dr. _________________________, I urged her to make sure that she presented herself for this appointment.

MEMORANDUM

TO: File

FROM: HR Director

DATE: 10/29

RE: Name of Employee

This morning I received a telephone call from Dr. ______________________ who saw our employee at our request. Dr. _________________________ said that she had perfectly normal hearing; she had a normal ear canal and that her problem is not physical. He will be sending us a written report shortly.

When informed of the diagnosis, a meeting was held with the HR director, the two attorneys in the team and the firm’s employment law attorney. A number of options were discussed:

. Splitting the team, leaving the secretary with the hand dictation attorney and re-assigning the associate;

. Creating a team with another secretary doing all tapes and this employee doing only hand dictation and administrative work; or

. Re-assigning the secretary to another department with salary adjustment to the work involved.

Ultimately it was decided that the secretary would be offered assignments in other departments.

MEMORANDUM

TO: File

FROM: HR Director

DATE: November 20

Re: Name of Employee

Today, with _________________________as a witness, I conferred with our employee to inform her of the decision of her two attorneys to stay together as a team. I explained to her that splitting the team or creating a new team with another secretary doing the tapes, were not considered fair and manageable options. I provided her with a chart of those job options available in the firm and what the job description and salary was for each. She said that she did not believe she would be able to take advantage of any of them because of the downward salary adjustment.

She presented the argument that her associate was difficult to work for and that this was the core of the problem. I told her that this had not been mentioned before and that the firm’s position was that there were approximately 110 secretaries in the firm and there were none who did not do tape transcription. This was part of the job description and in addition to their own assignments, they were often called upon to help others. This she was not able to do.

The employee was told that she would have until the end of the week to make a decision about the positions offered. She stated that she felt she would have to leave because she could not live on the salaries involved. She asked for and was assured that she could have time off for interviews.

The employee stated that she would be looking for a position outside the law firm environment and would let us know when she found something.

Disclaimer Example

Sample

“Acknowledgement of Receipt of Employee Handbook”

Property of (Firm Name)

Copy No.

I, ___________________________ (employee), acknowledge receipt of this manual and that I am responsible for knowing its contents and keeping it updated. I also understand that this manual is firm property that must be returned to the Personnel Manager when I leave this organization.

I further understand that this manual does not create a contract with the firm for any purpose, that my employment is at-will, and that both the firm and I have the right to terminate the employment relationship at any time. The provisions of this manual may be unilaterally modified or eliminated by the firm at any time.

Issued To: __________________________________________

Signed: __________________________________________

Source: HR Policy Answers ^TM on CD. Personnel Policy Service, Inc. Louisvile, KY. 2001.

Bibliography

Abrahams, Sharon Meit. “Teach Your Employees Well: Training Remains the Key to Future Success.” IL: ALA. Legal Management. January/February 1998. [The ALA Management Encyclopedia^SM includes all referenced Legal Management articles.]

Carlisle, James. “Even a Legal Secretary Can be In Conflict of Interest.” Toronto, Ontario Canada: Financial Post. July 7, 1998.

Cohen, Debra. “Take a Closer Look At Your Employee Evaluations.” IL: ALA. Legal Management. September/October 1999.

HR Answers ^TMon CD. KY: Personnel Policy Service, Inc. 2000.

Of Counsel. NY: Aspen Law and Business, a Division of Aspen Publishing.

“Release Agreements: Protecting Against Discrimination or Encouraging Litigation.” KY: Personnel Policy Services, Inc. HR Matters – Clear Answers to Employment Law Compliance. February 1999.

Rosenberg, Eileen. Principals of Law Office Management: Concepts and Applications. MN: West Publishing Company. 1993. PP. 263 and 264.

Stark, Monica. “Standing on the Brink: Substance Abuse Policies Keep Your Firm on the Road to Recover.” IL: ALA. Legal Management. January/February 1999.

Vacarro, Patrick L. and Margaret R. Bryant. “Make Sure Your Performance Review System is a Management Tool, Rather than a Weapon for Employees.” IL: ALA. Legal Management. September/October 1993.

Wilber, James and Susan D. Sjostrum, Editors. Complete Personnel Administrative Handbook for Law Firms, Supplement 3. PA: Altman Weil Pensa Publishing Inc. 1997.

Will, Kriss. “Performance Improvement for Results.” IL: ALA. ALA News International. November/December 1998.

Online Resources

http://www.alanet.org

http://www.astd.org

http://www.eeoc.gov/laws/policy/vii.html

http://www.shrm.org