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How To Keep A Written Warning From Sparking Confusion And Litigation

Written warnings are meant to document inappropriate behavior or performance issues, creating a record that can be referred to later or ultimately used to justify termination.

Unfortunately, many written warnings are too vague to be actionable -- or so detailed they invite disputes. A useful written warning is specific enough that everyone understands what is being warned about. At the same time, you should avoid overkill and legal conclusions. Here are some tips:

Discipline should be consistent for similar misconduct

Whatever the reason for the warning, be sure that your company is applying discipline consistently across the board. Otherwise, or you risk discrimination claims -- along with seeming unfair.

Be specific, but avoid unnecessary commentary.

  • Describe in a fair amount of detail exactly what the employee did to prompt the warning.
  • Include details about previous verbal and written warnings.
  • Discuss the impact of the employee's misconduct.
  • Connect the employee's misconduct to a specific policy that was violated.
  • Include a follow-up plan or a description of the consequences. This could be notice that the employee will be terminated if the conduct is repeated, the offer of a performance improvement plan, or steps you agree to take to address the problem. Make clear throughout the organization that such plans are to be carried out.

Be direct and honest about the reason for the warning. Some employers and HR departments try to avoid confrontation by playing down the misconduct. It may seem as if there is little difference between a termination for "personality issues" and one for misconduct. Unfortunately, falsifying the reason for discipline or termination could later be viewed as evidence that you used a pretext to discriminate against the employee.

Keep your description close to the actual reason for the discipline. For example, if the employee is being disciplined for failing to get a doctor's note for an absence, avoid discussing the employee's attendance overall. This could give the impression that the employee is being disciplined for lack of attendance instead of failure to justify a single absence.

Avoid making legal conclusions. Instead of accusing the worker of "discrimination and harassment," identify which policy they violated and specifically how. Because employers can be liable for unlawful conduct committed by employees, you could set yourself up for potential liability if you describe an employee's actions in legal terms.

Give the employee a chance to respond. Not only does it promote good employee relations, but it may also flag underlying issues, such as a medical condition or family issue, that needs follow-up from HR.

A prompt, detailed warning can help an employee turn things around -- or provide justification for further action. Make sure yours work as expected.

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