12 Keys to Delivering a Litigation-Proof Warning Letter

Today’s post is by Johanna Harris, author of USE PROTECTION: An Employee’s Guide to Advancement in the Workplace (CLICK HERE to get your copy).

Why a Written Warning is so Important

A written warning is not simply the lens through which an underperforming employee can see his deficiencies and correct them. It is the backbone of an employer’s defense in the event that an employee fails to improve, ends up being fired and then challenges the legality of the termination.

Basic Questions to Answer First

Before you start to draft a written warning, you need to answer some basic questions. Exactly what aspects of your employee’s performance are unsatisfactory? If he has performed poorly on specific tasks, are these tasks clearly within his job responsibilities? Is the employee’s inadequate performance in fact the fault of several people, and if so, is he alone being singled out for a warning?

No Legal Jargon or Technical Terms

Your written warning letter should be understandable by a neutral, non-lawyer third party who has no intimate knowledge of your company’s business. Don’t use insider’s abbreviations or complicated technical terms. Avoid informality, sarcasm, or any hint of disrespect. “Hi Joe, Your bug fixes to version 7.5.2 of the PLX interface haven’t cut the mustard” needs to give way to “Dear Joe, Your performance on your more recent computer programming assignments has not been satisfactory.” Above all, your warning letter needs to be accurate. If one of Joe’s programming jobs was, in fact, satisfactory, you’ll need to say that his performance on “all but one” were unsatisfactory.

A Dozen Critical Components

Now that you’re ready to draft the actual document, you need to know the 12 key components of every warning letter.

1. Specificity. Describe the employee’s unsatisfactory performance with specific times, dates and, where appropriate, the other employees or clients involved. Don’t just write, “Your performance as a sales rep has been unsatisfactory.” Explain how the employee did not have adequate working knowledge of the specific product lines he was selling, or that you have received complaints from specific customers about his repeatedly missing appointments.

2. Seriousness. Make clear why the employee’s unsatisfactory performance presents a problem for the company. That means a comment such as “Your repeated failure to complete the reports on time has cost us one of our most valued customers.”

3. Improvement Plan. Your warning letter needs to include a plan for improvement, including the specific steps that the employee needs to take. Consider a line such as “We expect you to attend regular weekly sessions on word processing and spreadsheet skills.”

4. Time Frame. Specify the time frame during which the employee needs to improve. In general, the more complex and the more senior the job, the more time will be necessary to show improvement.

5. Resources for Improvement. Explain whether the employee will be provided with any training, coaching or other resources to help him improve.

6. Check-Ins. Specify how often the employee will be required to check in with you during the warning period. Make sure you specify who will set up the meetings and whether they must be face-to-face or by telephone.

7. Past History. Include any relevant history of prior warnings, and make sure to document prior efforts to improve the employee’s performance. Don’t let your written warning create the false impression that this is the very first time he’s heard about his deficiencies.

8. Consequences. Delineate the restrictions on the employee’s ability to receive raises and bonuses during the warning period. Explain whether he can apply for and accept other jobs in the company while he remains on warning.

9. Risk of Termination. Clearly explain what happens if the employee fails to attain a satisfactory level of performance by the end of the warning period. Don’t simply state, “You could be in further trouble if you don’t shape up.” Instead, you need to spell out, “If you continue to receive complaints from customers about your conduct, even after four weeks of attendance at anger management seminars, your employment will be terminated.”

10. Early Termination. Explain whether the employee is at risk of termination before the end of the warning period. That means a sentence such as “Your employment may be terminated before the end of the six-week warning period if you do not show any signs of improvement after three weeks, or if you once again erase all of the week’s transactions data.”

11. Continued Monitoring. Even if the employee improves sufficiently during the warning period, you need to explain that he will continue to be at risk of termination if he slides back later on. You could state, “If weekly productivity improves by the end of the 6-week warning period, you will not be terminated. However, if your productivity later falls below the minimum, you will again be at risk of termination.”

12. Appeals. Explain whether your decision to terminate the employee at the end of the warning period will be a final one, or whether there will be an opportunity for appeal. An appeal process allows an aggrieved employee to complain internally rather than file a legal complaint with a court or regulatory agency.

Review

Once it’s drafted, your warning letter will need to be reviewed to ensure that it is not tainted by discrimination based on race, age, national origin, sex, sexual orientation, disability or legally protected leaves of absence. The review will also ensure that the employee is not being punished for filing a complaint about you, another manager, or the company. The review should be carried out by another manager, an HR professional or, in some cases, an attorney.

Delivery

The warning should be handed to the employee in person in a private place.

Only those who have a business need to know about the warning should be informed. If the misconduct is serious or entails illegal activity, it might be prudent to allow the employee to have an attorney present if he chooses. That doesn’t mean that the attorney can talk during the meeting, but he can listen, observe and advise the employee before and after. During the meeting, you will need to give the employee an opportunity to respond either orally now or in writing later.

Preservation

Your written warning should be preserved in the employee’s personnel file. If the employee subsequently improves and retains his job, the additional information can be attached to the original warning.

Addressing Complaints

An employee who perceives he is having performance difficulties may file a complaint alleging that you have been discriminating against him. This doesn’t prevent the company from issuing a warning if it is warranted. Still, it is important that the company investigate even the most frivolous complaint and document its conclusions before the written warning is issued. If the employee has complained about you, a different manager should review his performance and then draft and deliver the warning.

Maintaining Flexibility

Finally, don’t be rigid. If the employee provides relevant information that you did not know or that contradicts the facts you’ve described in the warning, it is entirely appropriate to withdraw or edit the warning. This is a far superior alternative to basing a termination on faulty information.

– Johanna Harris has been a trial attorney with the U.S. Department of Labor and in-house labor counsel for two multinational corporations. She is currently the CEO of Hire Fire and Retire LLC. Her new book is USE PROTECTION: An Employee’s Guide to Advancement in the Workplace (CLICK HERE to get your copy). This post is an abbreviated version of a more extensive discussion posted at Communicating Poor Performance While Tiptoeing Through the Legal Minefield.

Photo: Warning by Stefano Brivio