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Employee Written Warnings: 4 Things To Know

 

Written warnings are letters to employees informing them of deficiencies in their conduct or performance. The goal is to convey (to the employees) the seriousness of the issue so they can fix it right away.

For employers with a progressive discipline policy, a written warning typically follows a verbal warning. However, depending on the severity of the infraction, the employer may skip the verbal warning and go straight to a written warning or even termination.

If mishandled, written warnings can dissolve into a legal quagmire. To avoid a messy outcome, keep these best practices in mind:

1. What to include in written warnings

Documenting the specifics of the offending behavior is vital. As noted in an article published by SHRM, "Since courts give more weight to contemporaneous accounts of what happened than subsequent explanations articulated during litigation, it is key to include as much information as possible" when documenting conduct or performance issues.

Along with a detailed description of the problem, include the occurrence date(s), any previous warnings issued to the employee, the specific company policies the employee violated, required corrective action and the consequences of further violations.

Don't dilute what happened. Instead, be clear about the real reason for the written warning. For instance, if the employee threatened a coworker, say exactly that and describe the threatening behavior. Explain the impact of the infraction, if determinable.

For unionized employees, be sure to check for any disciplinary requirements outlined in the collective bargaining agreement.

2. What to exclude from written warnings

According to law firm Ogletree Deakins, employers should not make legal conclusions when preparing written warnings. Employers should focus on the actual policy violation instead of making generalized statements about the employee's conduct or performance.

In addition, confidentiality clauses prohibiting employees from discussing their written warnings normally aren't recommended because they might violate employees' rights under Section 7 of the National Labor Relations Act.

3. What to do about supporting documents

Per Ogletree Deakins, putting all the relevant information in the written warning itself is usually sufficient. But if supporting documents, such as photos, are available, it is generally helpful to retain them.

Supporting documents should go in the employee's personnel file along with the written warning or in the employer's investigative file.

The aforementioned SHRM article advises against giving employees supporting documents in addition to the written warning, noting that the surplus of documents "is almost always overkill."

4. How and when to issue written warnings

To prevent discrimination claims, make sure your practices on written warnings are consistent with past written warnings to employees for similar conduct. 

Issue written warnings promptly because the sooner you notify employees of your concerns, the quicker they will get the message and hopefully rectify their conduct or performance.   

Give the employee a chance to respond to the written warning, and document any subsequent interactions.  

Follow company policy or seek legal counsel if the employee refuses to sign the written warning. 

 

 
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Our firm provides the information in this e-newsletter for general guidance only, and does not constitute the provision of legal advice, tax advice, accounting services, investment advice, or professional consulting of any kind. The information provided herein should not be used as a substitute for consultation with professional tax, accounting, legal, or other competent advisers. Before making any decision or taking any action, you should consult a professional adviser who has been provided with all pertinent facts relevant to your particular situation. The information is provided "as is," with no assurance or guarantee of completeness, accuracy, or timeliness of the information, and without warranty of any kind, express or implied, including but not limited to warranties of performance, merchantability, and fitness for a particular purpose.
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