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EMPLOYMENT LAW GUIDE: - page 71 / 134





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whether oral warnings occurred and the content of any disciplinary discussions.

Without a written record, employees can readily deny that they were subject to

discipline. Consquently, employers should generally maintain written records of

discipline, including memos to file, incident logs, emails to the offending employee

or written warnings or memoranda. Depending on the issue, it is often preferable to

obtain the employee’s signature on such documentation to provide evidence of

receipt. Emails can often serve the same purpose in a less formal, intimidating


  • When discipline pertains to performance issues it should not necessarily

be handled as a “punishment” but rather as a real opportunity to improve. Many

litigation cases are the result of a perception on the part of the former employee that

she was not given a chance to improve and was fired summarily without advance

notice. By providing employees a real opportunity to correct a problem (and the time

and tools necessary to make such a correction), employers can achieve multiple goals:

(1) potentially avoiding the need to terminate with the attendant risks of claims and

resulting costs and uncertainty of recruiting and hiring; (2) possibly turning around a

poor performer and assisting the employee in becoming a productive member of the

workforce; and (3) if improvement does not occur, avoiding surprising the poor

performing employee, thereby reducing the risk of employee litigation.

  • When discipline pertains to misconduct, an employer should make sure it

has investigated fully by reviewing all relevant documents, speaking to witnesses and

getting the employee’s version of events. Only when the employer believes it has


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