Poor Documentation Dooms Employers’ Defense

Segal is a partner with the Wolf Block law firm in Philadelphia. His tips appeared in our sister publication HR Manager’s Legal Reporter.

Don’t Guarantee Progressive Discipline

Progressive discipline and documentation are not legally required, but they are legally beneficial, Segal says. But don’t guarantee progressive discipline. For example, your policy might say, “Although employment is at will, we may from time to time apply progressive discipline. Ordinarily the process will involve these steps. However, we reserve the right to skip steps.”

Strive for Consistency

Whenever you make an exception to policy, no matter how well intentioned, the exception you make for employee #1 will be the comparator for employee #2, Segal says. In other words, the second employee will say, “You didn’t fire Susie for this offense, so you can’t fire me.”

There is a compelling logic to that position unless you carefully document your exceptions. For example, you might write to the employee, “What you did is ordinarily punishable with discharge, but because of your 20 years of fine service, and your recent excellent work record, we are not terminating your employment. If both factors had not been true, we would not have been able to make this exception.”

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Discipline in a Timely Manner

The business benefit of acting in a timely manner is that you draw attention to the problem, and either the employee improves or leaves. Other employees also see that you are acting in accordance with your policies and not playing favorites.

Legally, you also gain by waiting. Here’s what happens:

You hire a receptionist, Sally. Monday, the first day of work, no call, no show. The manager calls HR and asks, what should I say when I call? (Segal says, “How about no call, just fire her?”) Well, says the manager, “I attended a seminar and we heard about bias, and this is an older woman.” Segal says, “But she was an older woman 2 weeks ago. If you let her go now, you’ll be protected by the ‘same actor inference.’ “

Segal explains that when the person who fires is also the person who hired, and the termination is reasonably close in time to the hiring, there’s an inference that it’s not discrimination.

But in this case, the manager does not terminate Sally. Tuesday she does come in, Wednesday she is late, Thursday she’s on time, and Friday she calls in sick. Ten months later she is fired for attendance problems. But look what’s happened in the intervening period:

1. She has a new manager, so the same player inference is gone.


2. She’s been there longer and has developed a greater emotional sense of entitlement to her job.


3. You have become aware of certain medical problems.

Now what could have been an easy firing has morphed into a tricky one.

Watch E-mails

Train managers not to put legal issues in e-mails. Later, such communications may suggest that legal conclusions had been reached. So, the e-mail message is not “Jimmy has been harassing” but “I would like to speak to you.”

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Verbal Warning Is an Oxymoron

“Verbal warning” is an oxymoron, says Segal. Always confirm the verbal warning in writing. If there is nothing in writing, but the manager remembers she spoke with the employee, have the manager put that in a memo. Don’t predate the memo; just make a current note of the past discussion.

If the manager is later asked why he or she didn’t make the note at the time of the discussion, the manager can say, “At the time I was focusing on helping the employee improve. I wish he had had the same focus—then we wouldn’t be here today.”

On tomorrow’s Advisor: More of Segal’s tips, and an introduction to a new turnkey training tool.