Fair Warning: Written Warnings Can Backfire on Employers

8 minutes read

Chances are, your company has a progressive discipline policy in place to address employee misconduct. Chances are, one key component of that progressive discipline policy is to issue written warnings to erring workers.

But written warnings shouldn’t be written lightly. For one thing, if the message isn’t crystal clear, employees may not understand where they went astray and therefore can’t change course. For another, unless disciplinary write-ups are handled with care, they can backfire, creating liability for employers.

Case in point: the Equal Employment Opportunity Commission reports that, in fiscal year 2017, U.S. employees filed 84,254 discrimination charges against their employers. In response, the EEOC collected $398 million in damages from employers—some voluntarily, some arising from lawsuits.

Furthermore, according to a legal review of EEOC charge filings from years past, 75% of EEOC discrimination complaints are triggered by disciplinary action or employee termination. Unless handled meticulously, that progressive discipline policy of yours may cause more problems than it solves!   

In other words, every time one of your managers composes a written warning, they could inadvertently put your company at risk. For that reason, it’s smart for HR—with help from legal counsel—to standardize all of its written warnings and related practices, starting with these basic guidelines. 

First, Define What You Expect from Employees

Obviously, the first time an employee learns about company behavior standards shouldn’t be the first time they receive a verbal or written warning. To avoid that scenario: 

  • Make sure your employee handbook includes a detailed description of behavior expectations and your progressive discipline policy. Include specific examples that will resonate with your workforce.
  • Don’t just review the employee handbook during the on-boarding process for new hires, address behavior expectations in detail—and request a signed acknowledgement that the employee understands.
  • Include performance standards in your job descriptions and make it part of every review, so it’s never up for interpretation.

Dos and Don’ts for Composing Written Warnings

  • Be direct and specific – Describe exactly what the employee did wrong. The only way employees can improve is if they know where they went astray. And should the case someday result in litigation, those contemporaneous records will carry more weight than any statements made later.
  • Identify which company policies were violated – Pointing to specific performance standards helps employees understand why their behavior was unacceptable. It may also strengthen your legal position, should it come down to that.
  • Explain how the employee misconduct hurts the company – Whether the end result is creating more work for coworkers or lost productivity at a given work site, it’s helpful to pinpoint the damage created.
  • Leave out unnecessary information – This one can be tricky to master, but including extraneous information—anything that’s not directly related to the incident in question—can muddy the waters. Liability-wise, it may also open another can of worms for employers.
  • Don’t over or understate the case – Avoid using euphemisms to soft-pedal employee misconduct; similarly, don’t exaggerate the wrongdoing. Both can be interpreted as discrimination.
  • Deliver written warnings promptly – Delaying a written warning can undermine its authenticity and may lead workers to claim they’ve been targeted.
  • Encourage employees to provide written responses – Not only is this fairer to workers, it may bring extenuating circumstances to light. You want to hear the whole story.
  • Follow up – If the written warning outlines steps for remediation, make sure the employee is following them—and that it’s all documented in their file.

Achieving Consistency in Written Warnings

In order to avoid any appearance of discrimination, it’s crucial to be consistent in the execution of written warnings. However, that’s easier said than done, especially for large, multi-site employers. Plus, every manager has their own management “style.”

In addition to training managers on your progressive disciplinary policy, consider providing them with strict guidelines and approved wording/templates for warnings. If your HR software system doesn’t make it easy for you to monitor disciplinary issues and oversee written warnings, perhaps it’s time to move to one that does.  

EPAY’s HCM system can help. Among other things, our complete HR and payroll platform includes a robust performance management system that makes it easy to track and document employee performance. It also includes a flexible employee points system that you can customize, tallying positive or negative behaviors in whatever way works best for your workforce. And it can provide your managers with instant access universal forms and templates that can prevent written warnings from backfiring. These days, it’s more important than ever to

dot your i’s and cross your t’s–learn how EPAY can help.  

Enjoy this article? Check out our other blog post Balancing Compliance with Compassion or visit our blogs page here

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