February 6th, 2019
Ursula A. Kienbaum at Ogletree Deakins
The DOs and DON’Ts of Written Warnings: What Employers Need to Know
Employers frequently use written warnings as part of their formal progressive discipline policies. How and when to use these warnings can sometimes be tricky. Below are answers to some frequently asked questions on written warnings and crafting compliant discipline policies.
Q. What elements should an employer include in a written warning, and how detailed should written warnings be?
A. Employers might want to include the following elements in a written warning:
In general, it may be helpful for a written warning to include as much detail as possible. This helps establish a timeline and eliminate any guesswork for anyone reviewing the employee’s record down the road.
Q. What should employers exclude from a written warning?
A. A general guideline when drafting employee discipline is to avoid legal conclusions. For example, if an employee is facing discipline for violating the employer’s anti-harassment policy, identify the specific policy violation rather than including generalized statements about the employee harassing or discriminating against other employees. Oftentimes, employers’ policies are more expansive than the law requires. Legal conclusions regarding harassment, discrimination, and retaliation risk being interpreted as admissions of legal liability instead of what they really are: internal policy violations.
Q. Should employers attach documents to the written warnings that would support the supervisor’s conclusions?
A. In some cases, it could be a good idea to include supporting documentation. For example, photos may be critical to establishing a justification for any discipline that an employer has imposed. Usually, it is sufficient for employers to include all of the critical facts and conclusions in the warning itself. It is generally helpful to retain supporting documents as part of the employer’s investigatory file after an employer issues the discipline.
Q. Should employers mention any warnings and/or actions it has previously taken against the employee ?
A. Yes, so long as those warnings (verbal or written) and/or actions are relatively recent (issued within the past five years, for example) and at least somewhat related to the conduct at issue in the current discipline.
Q. Should a written warning detail the impact of the problem at issue?
A. Describing the impact of an employee’s misconduct can be a helpful tool to not only document and bolster the employer’s decision, but also to increase the employee’s awareness of the practical effects of his or her actions on the business and/or other employees.
Q. How might an employer explain, in the written warning, that if the employee does not improve his or her performance, the employer will take further disciplinary action?
A. This type of language helps to reinforce the seriousness of an employee’s actions. It also puts the employee on notice of the potential consequences of his or her actions if he or she fails to improve his or her performance, which can be incredibly important when an employee is developing a pattern of performance issues. In those cases, the employer may want to document the employee’s disciplinary history in a written warning and include a statement such as “further violations of company policy will result in disciplinary action, up to and including termination.”
Q. Does whether the employer is unionized affect the wording of warning letters? What about the inclusion of appeal rights?
A. When dealing with unionized employees, the employer needs to be careful to check the relevant collective bargaining agreement for any procedural requirements for discipline. These can include strict timelines for issuing discipline, progressive discipline, and even procedures for investigatory interviews. All unionized employees have the right to have a union representative present during any investigatory meetings if they request it—prior to receiving a written warning. Failure to accommodate a unionized employee’s request for union representation can jeopardize the validity of the discipline itself. In general, unless the collective bargaining agreement specifically requires it, employers are not required to notify unionized employees of any appeal or grievance rights that they might have under the collective bargaining agreement.
This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.
This blog was written by Ursula A. Kienbaum at Ogletree Deakins, which authors our Model Policies and Forms for Tennessee Employers, Massachusetts Human Resources Manual, Colorado Human Resources Manual, and Employee Benefits – An Employer's Guide. You can find the original blog post and their Our Insights blog on their website