By Jonathan K. Driggs, Attorney at Law, P.C.
We’ve all been there before: it’s become time to put something in writing regarding an employee’s performance or misconduct problems, but we find ourselves struggling to effectively articulate our concerns. I have had the opportunity to review hundreds of warning letters over the years, and I know all about the challenge. Too often this results in poorly written warning letters… or worse, no warning letter being issued at all.
In this month’s installment, we will discuss basic concepts related to drafting warning letters (format, content, etc.) In next month’s installment, we’ll discuss philosophical approaches and important legal ramifications that can flow from warning letters.
Format and Content
While there are many different forms and templates that you can use, a well-written disciplinary action letter should include the following:
- Clearly identify the PROBLEMS. Describe the performance or conduct problems in detail—be sure to include dates and facts. If the problem involves a subjective issue like a “poor attitude”, be sure to provide specific examples of how the poor attitude is displayed. Simply stating that an employee has a “bad attitude” is too vague to be of any help. Vague allegations can also create appearances that the manager is being careless or is “out to get” the employee.
- Clearly describe the IMPACT that the problems are having on the organization. The “impact” is your ultimate concern: what are the negative consequences that flow from the problems? What price is the company paying as a result of the employee’s misconduct or poor performance? For example, if the problem is tardiness, the impact of the problem may be that other employees have to cover for the employee which pulls them away from their own duties.
- Clearly identify the company’s EXPECTATIONS for the employee. Now that you’ve told the employee what he or she has been doing wrong, clearly explain to the employee what he or she needs to do in order to perform the job correctly. This is a good place to clarify policies, reset expectations, provide helpful coaching and anticipate possible future excuse-making.
- Clearly WARN the employee of future consequences if they fail to meet the company’s expectations. Be clear and firm, but avoid becoming overly rigid or specific about any consequences (for example, don’t write: “if you’re tardy one more time, you’ll be suspended for 3 days; if you’re tardy a second time, you’re fired”). Usually a clause like the following is clear enough, while also providing needed flexibility: “failure to make immediate and meaningful improvements as described in this letter, may* result in further disciplinary action and/or termination of employment.” *Using words like “may” instead of “will” helps to preserve your flexibility, so you can appropriately and fairly respond to any set of circumstances that might develop.
- Have the employee SIGN the letter. Ask the employee to sign the letter. If the employee would like to make a written response to the letter, allow him/her to do so. If the employee refuses to sign the letter, have another manager witness the employee’s refusal. Write “refused to sign” on the signature block and both you and the other manager should sign and date the letter Provide the employee with a copy of the letter and inform the employee that his or her refusal to sign does not negate the impact of the letter (hint: an appropriately worded “disclaimer statement” by the signature block can help reduce employee fears about signing).
Other Points to Keep in Mind:
- Use proper grammar and spelling, otherwise it can look like you were careless or casual when drafting the letter.
- Write the letter directly to the employee (not to the file or some other person). Write the letter in a style and manner that can be easily understood by the employee.
- Avoid making it “personal” against the employee; be factual and objective. The tone should be very professional and respectful. Avoid sarcasm, belittling comments or name-calling. Remember that important third parties could end up reading your letter (e.g., the unemployment office, attorneys, government investigators and juries).
- Reference any related prior verbal warnings/discussions in the letter.
- Always have the letter reviewed by someone else before giving it to the employee! Your boss, an HR manager or your legal counsel would be an appropriate choice. This will help ensure that the letter clearly communicates the intended message in a professional and respectful manner.
This article should not be construed as legal advice.
Jonathan K. Driggs is an employment law attorney with over 18 years of experience, including 3 years with the Utah Labor Commission. Contact Jonathan for any employment law consulting you may need at www.jdriggslaw.com
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