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Key tips to remember when counseling and disciplining employees

by Michelle Lee Flores

There is nothing like a gentle reminder or a “cheat sheet” to look at when counseling or disciplining employees. The key thing to remember is that although nothing can absolutely insulate you from claims of discrimination or wrongdoing, there are steps you can take to get to the ultimate goal of improving an employee’s performance or, alternatively, terminating an at-will employee when counseling and discipline haven’t facilitated acceptable improvement. 

Top three things to do when counseling
Tell the employee what he is doing wrong. Tell him how to fix it. Tell him what will happen if he doesn’t fix it. It sounds simple, but it often isn’t done in a very clear and concise manner. And it should be done in writing if previous discussions on the same issue haven’t changed the behavior. Given the expense involved in terminating an employee and hiring and training a new one, the ultimate goal is to get the current employee to improve his performance to an acceptable level, regardless of the area of improvement or violation.

For example, if an employee isn’t engaging with customers with the proper “sunny disposition” and isn’t ending the interaction with the company’s slogan of “Come back and see us soon,” then after a few gentle reminders of the company’s work performance rules by the employee’s supervisor, a written counseling notice should be provided to him. This written counseling notice should  document the previous times he was told what he was doing wrong and what the corrective action needed to be. The written counseling notice also should explicitly state that if the performance doesn’t improve, the employee will be subject to additional discipline, which may include termination.

It’s also a good idea to have a statement indicating that violations of the same type—or violations of some other nature or rule of conduct—may lead to discipline, including termination. The written counseling should also have a statement that nothing in it changes the company’s at-will-employment policy. The notice should include space for the employee to provide his comments, and he should sign and date an acknowledgment of receipt. If the employee refuses to sign, a company representative should write on it that he refused and initial and date it.

Of course, you should follow your own disciplinary procedures, which are usually found in the company’s employee handbook. But hopefully nothing in the handbook would limit the above recommendations. One thing to watch out for is a progressive discipline policy. If you have one, you should make sure the counseling notice follows it.

Tell the employee again and again . . . if possible
Unless the violation is severe enough to warrant termination on a first offense, you may decide that telling the employee again and again what he is doing wrong, how to fix it, and what is going to happen if he doesn’t is a good idea. Often, telling an employee these three things clearly and concisely and in writing will either get him to improve or, if not, become the proverbial “writing on the wall” that motivates him to move on.

Although it may be obvious and should go without saying, any counseling or discipline conversations should be conducted privately, and the employee should be given the opportunity to comment during the meeting about the written notice as well as ask any questions. If he indicates he would like to think about the meeting and comment later, endeavor to put a reasonable time limit on it to avoid a long, open-ended counseling period.

For example, tell the employee that he may take a few days to collect his thoughts but that you will need to hear from him no later than a week because it is best for all involved to have clarity on the matter and the necessary steps for future success. If he doesn’t provide any feedback within the time period, document that he didn’t and the company therefore has concluded that he doesn’t have any questions or comments. A quick, friendly e-mail could be sent to the employee, and a copy of the e-mail should be printed and placed in his file along with the counseling notice. It’s always advisable to have two people present on behalf of the employer when having discipline or counseling meetings with an employee.

If the employee’s reaction or behavior indicates he is “lawyering up,” then you shouldn’t be afraid to seek the advice of an employment lawyer. It’s often the case that a little change of a few words or a tweak on a plan of action to deal with a performance issue can make all the difference in the ultimate goal of communicating clearly and effectively to the employee.

Bottom line
Although counseling or disciplining employees is always a case-by-case analysis, this article has provided some standard components of the communication. By no means is this an exhaustive analysis of interactions of this type, but it does lay out some key considerations and items to include for a well-written communication and meeting with an employee.

Michelle Lee Flores is an attorney with Cozen O’Connor in Los Angeles, California. She may be contacted at