If an employer believes a worker has failed to perform the duties of a job, the employer may choose to record the worker's performance in the worker's employee file. Often known as "write-ups," these records can be used to justify disciplining or even firing an employee.
Generally speaking, employees are asked to sign the document to show they have seen and understood them.
What options do workers have if they disagree with what their employer has said in a write-up? What can a worker do if they do not want to sign the document? Before you discuss employees' options, it's important to understand a few key concepts of U.S. labor law.
Some employers do not think a write-up for an employee is valid unless the employee signs the write-up report, but this is false. While it is a good policy to have a system that proves the employee was presented with the write-up, it is not required that the employee sign the document.
In the United States, most employers hire employees under at-will agreements. This means that employers can legally fire their employees for nearly any reason, at any time, and without warning. At the same time, employees are also legally able to quit without warning or reason. There are, however, some exceptions to at-will policies.
At-will employment has largely become the default in the U.S. labor market. But employers can choose to create their own employment contracts, while those contracts may also lay out constraints on the employer's and/or the employee's ability to terminate a contract.
It's important to understand the basic concepts of at-will employment when discussing write-ups and employees' options when dealing with them. This is the case because employers often have the ability to fire an employee if they do not comply with the employer's request. Such a request can be asking an employee to sign a write-up.
If an employee refuses to sign a disciplinary write-up, an employer can attempt to clarify the issue by going through the document point-by-point. If the employee refuses to sign again, the employer may decide it is a form of employee misconduct and documents the employee's refusal with a witness present.
If an employee is written-up and disputes the statement in the write-up, the employee may be able to submit a written rebuttal that can be filed alongside the write-up. This provides the employee an opportunity to have their dispute officially recorded.
Rather than insist on a signature, HR professionals should encourage the employee to submit a written rebuttal and attach the rebuttal to the disciplinary form. This indirectly proves that the employee knew about and understood the discipline, which is the whole reason for asking employees to sign as it shows the employer really engaged in progressive discipline. Additionally, the rebuttal may bring to light some legitimate issues that the company needs to investigate.
There is no legal definition of what constitutes a write-up, nor is there a definition of what is required to be in an employee’s personnel file. Therefore, recollections about verbal warnings, e-mails, letters, even notes on napkins can be evidence to support an employer’s position that an employee was terminated because of poor performance. The key item a manager needs to remember is if the employee challenges the reason for the termination that there is support for the decision to terminate, either through testimony and/or documentation. The documentation can come in any form and does not have to be a formal write-up that is maintained in the employee’s personnel file. However, this is not to say that employers remove formal employee performance reviews and write-ups, these are very good business practices to maintain.
Verbal warnings have to be documented. If there is no record of verbal warnings it is very difficult to prove at a later date that the employee had been counseled about the issue.
Managers should always document a verbal warning in some manner, such as in a manager’s log or even e-mailing themselves the specifics about the verbal warning. By preparing an e-mail and sending it to themselves, it creates a great time-stamped record that is excellent evidence should there ever be any litigation concerning a termination.
While write-ups and counseling should address the overall issue that the employee needs to improve, employers need to avoid general statements without providing specific examples. For example, instead of writing an employee up for having a poor attitude, the employer should provide specific performance issues. The employer should document the time, date and facts of the incident. Write ups should also list the conduct that is expected of the employee in the future.
Before you find yourself in this type of scenario, develop a written policy for how your company documents write-ups and other formal written items, such as evaluations and a performance review. Include your policy in your orientation and in your new-hire materials so employees know what your policies are, from the first day of employment.
It's also worth consulting an employment-law attorney about how to protect yourself and your company. An attorney can help ensure that your workplace policies, your written reprimand forms, and your termination guidelines are free from any loopholes and will protect you from litigation.
Create a standard template to use for disciplinary proceedings. The form should be on corporate letterhead and should include the following language:
There should be verbiage above the employee signature line to the effect of, signature does not indicate that you agree with the information contained wherein, only that you acknowledge being in receipt of a copy of the written evaluation.
Many times the employee refuses to sign such documents because they do not agree with them. To alleviate this, some employers provide a line on the document that states the employee does not necessarily agree with the write-up, but is signing the document only to acknowledge receipt.
You may also opt to include verbiage indicating that a failure to sign acknowledgement constitutes a form of employee misconduct and is grounds for termination. Using this type of language both allows the employee the option of disagreeing with the content while acknowledging receipt and while also protecting you from claims of misrepresentation.
Another method to avoid the argument that the employee never received the written warning is to email the employee. This creates a record of when the warning was prepared and sent to the employee.
While some might fire an employee for refusing to sign under insubordination, an employer should not insist that the employee sign a disciplinary notice. If an employer threatens to fire a worker for not signing a disciplinary notice, the company has escalated a situation unnecessarily. Asking for a signature on a disciplinary notice isn't like distributing an employee handbook or providing a restrictive covenant, which must be signed. Moreover, if the worker is fired at that point, he or she is likely to be eligible for unemployment compensation.
Although there are both state and federal regulations regarding firing an employee, navigating issues around termination alone can be confusing and difficult. If a worker feels they have been treated unjustly by their employer, it's recommended that they seek assistance and advice from an experienced lawyer.
Although at-will employment provides employees with significant freedoms in terms of firing workers, there are boundaries. California law states that employers cannot discriminate against workers or fire workers based on the worker's protected status. Examples of protected statuses include, but are not limited to: Race, Religion, Sex, National Origin, Sexual Orientation, and Disability.
If you believe you have been wrongfully terminated for your refusal to sign a false write-up, contact a lawyer at Freeburg & Granieri, APC to discuss your legal issue today!
If you're dealing with an employee who has been written up and reprimanded but who was then insubordinate in refusing to even acknowledge the disciplinary action, ultimately, you may have a belligerent and uncooperative individual on your hands. In relatively calm proceedings, have an HR representative in the room with you as a witness -- or in extreme circumstances -- call security to escort the employee from the building.
Reprimanding or disciplining an employee are never pleasant undertakings, but they are necessary to the overall health, well-being and operation of your business or organization. Be prepared, approach the task in a calm, respectful, professional manner and don’t allow yourself to be intimidated. The attorneys at Freeburg & Granieri, APC can help you navigate the process of dealing with a difficult employee.
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