After discussing discipline with an employee, we always ask the person to sign the disciplinary form so there is a record that we talked with the employee about the issue. Quite often, the person refuses to sign. What do we do if an employee sues us someday? Would a court accept a document that has “employee refused to sign” written on it? Should we just bag the whole idea of written warnings and avoid this problem altogether?— Amanda in Anaheim
On more than one occasion, HR professionals have asked me why, when employment is at will—meaning that it can be terminated with or without cause or prior notice—an employer should deal with the hassle of giving written warnings and, as part of that process, obtaining the employee’s signature.
Although not required by law, a written notice of performance deficiencies followed by an opportunity to improve serves a useful employee-relations purpose: Once given the warning, the employee is unlikely to be surprised by a later termination for failure to improve. He or she may not be happy with the termination but will be more apt to feel that the process was fair. Employees who feel they’ve been treated fairly are less likely to go to a lawyer or to file an administrative complaint over a wrongful termination.
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Further, those of us who have litigated cases before a jury understand the difficulty of relying solely on the at-will defense in an employee lawsuit—it is a difficult concept for jurors to stomach. Virtually every red-blooded American juror almost instinctively expects employers to treat employees fairly and to afford them “due process,” even if such steps are not legally required.
The best way to prove employer fairness and due process is to present evidence that you gave a prior written warning and the opportunity to improve before termination. The employer has the burden of showing that the warning was indeed given. An employee’s signature acknowledging receipt is the best evidence of actual notice. However, if the employee won’t sign the form—the problem raised in the question—the supervisor or another witness should write “employee refused to sign” and then sign and date the note. The supervisor and/or witness will then be allowed to testify in court that the notice was in fact given if the employee denies receiving it.
In my experience, even attorneys who represent employees advise their clients to sign the warning. In California, employees have a right to inspect their personnel file (with certain exceptions) and to receive a copy of any document they sign. Employees are thus able to obtain a copy of any signed warning and provide it to their attorney or a government agency. This may provide the attorney with valuable information in developing the lawsuit. However, assuming the employer has done a good job drafting and implementing the warning, the information may also dissuade employees and their lawyers from pursuing a lawsuit.
Allen M. Kato, Esq., is an associate at the San Francisco office of the law firm Fenwick & West, LLP.