Mastering the Write-Up Tool
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
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