101 Sample Write-Ups for Documenting Employee Performance Problems: A Guide to Progressive Discipline and Termination

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Consequences, Rebuttals, and Employee Acknowledgments

Negative Consequences

It is critical that every disciplinary write-up include clear, specific, and unambiguous con-

sequences of an employee’s failure to improve performance. Unfortunately, many managers

either leave out this Negative Consequences section altogether or paint vague pictures of

what can happen if employees don’t change their performance or behavior immediately.

Poor Examples of Negative Consequences

The following examples of weak negative consequences can leave an employee feeling unsure

of your intentions:

If you do not meet the performance objectives outlined in this disciplinary memo,

you will be subject to serious discipline.

In the future, please don’t forget to lock the cash drawer at night before you leave

the ofce.

Tony, you must stop your habitual lateness and assume responsibility for your

actions from this point on. Otherwise, I will be forced to take further action

against you.

The employee is to immediately increase her number of daily outbound collection

calls. Otherwise, she will continue to fail to meet minimum performance benchmarks.

The obvious weakness in these examples comes from their ambiguous consequences. Appeals

to assume responsibility for one’s actions, generic terms such as “serious” discipline, and

hollow threats of “further action” will be interpreted against you if you are challenged in

court to define what you meant.

Properly Written Negative Consequences

Some employers use specific time windows when doling out consequences, while others use a

generic, catchall phrase for almost all situations. There is no right or wrong answer in these

instances: It’s simply a matter of your company’s philosophy, culture, union status, and the

employment laws of your state.

Generally speaking, I recommend the following phrase in the Negative Consequences

section of the disciplinary warning template:

“Failure to demonstrate immediate and sustained improvement may result in further

disciplinary action up to and including dismissal.”

Mastering the Write-Up Tool

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The reasons for this phrase are simple:

1. It buys you the most discretion possible.

2. “Further disciplinary action up to and including dismissal” certainly places the

employee on notice that his job may be in serious jeopardy of being lost, fulfilling

your due process obligations.

3. “Immediate and sustained improvement” is a simple enough phrase, indicating

that the turnaround can’t just be for thirty or sixty days. In short, you retain the

discretion to determine what is considered “immediate” and “sustained” and what

level of discipline should follow if there is a repeat occurrence of the violation or

infraction.

4. Most important, judges and arbitrators recognize this common language, and the

majority of employment defense lawyers (i.e., those who represent companies like

yours and mine) recommend this catchall phrase in most disciplinary situations, es-

pecially those involving at-will workers.

Active Time Windows May Also Be Used to Clearly

Describe Negative Consequences

Unlike the previous catchall phrase, active time windows (requiring, for example, thirty-,

sixty-, and ninety-day “stay clean” periods) may be used in the Negative Consequences sec-

tion of your write-up template. Again, this may be a matter of style, culture, or your senior

management team’s philosophy about what progressive discipline is meant to accomplish

and how it is to be used.

Keeping that in mind, there are certain times and circumstances where active time win-

dows may be preferable:

1. In union environments where collective bargaining agreements tend to spell out

specific provisions and time frames that govern their members’ work schedules,

seniority rights, and grievance procedures, specific disciplinary time windows

may be the norm.

2. In high-risk situations where you may be terminating someone in multiple

protected classes or protected activities, time-specific windows may be a more

suitable alternative. In such cases, the clearer the notice in terms of what the

problem is, how the individual must correct it, and by when, the better. Your

written message might read: “The failure to sell 14 widget systems by March 15,

2010, will result in your termination at that time.”

Is there a caveat to be aware of when employing active time windows? Yes, there is: Don’t

allow your documentation to appear to serve as a guaranteed employment period for the

duration of the disciplinary time window. In other words, use the phrase “if at any time

within” in the documentation itself. For example, your language might read: “If at any time