Getting to the bottom of the infraction should be an inquiry, not an inquisition by Jaime Todd, MBA
After all avenues of information gathering have been exhausted, it's decision time. Even though the determination of guilt or innocence may remain unclear, a formal decision must still be made. The investigation process is as important as the decision. If the final resolution is challenged at a later date, evidence demonstrating a fair and thorough investigative process will favor upholding the decision, even if others disagree with it.
Rendering no decision is not a viable option. When no action is taken, it will be argued that the employer condoned the activity, and if a similar incident occurs with the same employee, it'll be difficult to justify this in court. Management can say they had no idea the employee had a predilection for certain actions after a first incident-but good luck convincing a jury of that. In fact, the plaintiff's attorney will likely argue that the employer should have known the probability that the behavior would recur.
Don't Tiptoe Around Terminations
Retaining employees who are ineffective, nonproductive, or criminal is unethical and ultimately detracts from the workplace. Ineffective managers constantly question their own decision making and are just as afraid of making the right decision as the wrong one. But just as employees have a right to challenge "unjust terminations," employers have a right, and a responsibility, to terminate employees for cause.
Administrators and supervisors must follow their corporate or facility policies and procedures on employee conduct as published. Steps for progressive discipline must also be followed equitably with all employees. Terminations for poor performance or substandard employee appraisals must be documented to reflect the pattern of poor performance and show that the employee was given an opportunity to improve.
For incidents that don't require termination, it's important to thoroughly review corrective actions with the employee and maintain the emphasis on correction, not punishment. For example, restate the infraction and clearly define how the employer expects the employee to correct it. Also, reinforce in the documentation that the infraction is unacceptable, and make it clear that further violations will lead to more serious action, up to and including termination.
Document, Step by Step
Even documentation of a single, seemingly insignificant act can save hundreds of dollars in unemployment claims and thousands in court costs. Most companies don't emphasize enough about teaching managers the importance of keeping accurate records of counseling sessions and terminations. It's common for managers to use catchall words or phrases such as unsatisfactory, undependable, unreliable, poor performance, or unprofessional. However, such words don't aid memory recall at a later date, and they certainly don't assist the employee. Effective documentation allows the reader to form a specific mental picture of the event and leaves few questions unanswered.
Consider the hypothetical case of an employee who stops coming to work and never informs the facility of the reason he quit. Two months later, the facility receives a Notice of Claim Filed from the Employment Development Department (EDD), stating that the employee alleges he was unfairly terminated. It's common for the manager to only write "voluntary quit" on the separation form for no call/no shows. However, such cryptic comments leave many questions for the unemployment office to ask.
Whenever a facility sends separation paperwork to the unemployment office disputing the employee's rights to benefits under the prevailing unemployment code, it's imperative that the documentation clearly portrays the employee's actions, or inaction, that caused the separation. Ideally, you want the claim to be dismissed at the first stage of the filing process, which is more likely to occur if the no call/no show termination paperwork is documented as follows: You have abandoned your job as a result of your failure to appear for your scheduled shifts (insert dates here); you have violated facility personnel policies and work rules. Moreover, you did not obtain permission for a schedule change in advance and failed to notify the facility of any emergency situation that might have excused you. (Employee made no attempt to preserve continuation of employment.) This documentation defines the infraction dates and clearly details that the employee's separation was voluntary. It also increases the probability of a first stage, favorable decision for the employer. Of course, the employee will almost inevitably disagree with the decision. If so, the most important concern is that the employer appeared fair in the investigation and decision-making process. The main questions managers should ask themselves before making a decision is how a jury might view the fairness of the decision: Were there aggravating circumstances? Did coworkers contribute culpability? Have similar situations been handled accordingly? Are decisions consistently maintained?