The Ins and Outs of Employee Write-Ups in California
Employee write-ups, also known as disciplinary write-ups or performance reviews, are formal documents that outline an employee’s job performance, behavior, and adherence to workplace policies and procedures. These write-ups typically serve as a means to communicate concerns with the employee’s conduct and performance, as well as to document any steps taken to address these issues.
In the workplace, write-ups are most commonly used as a disciplinary tool. When an employee’s actions or behaviors violate company policies or standards, supervisors may issue a write-up as a way to formally address the issue and provide the employee with a clear understanding of the problem. This can be especially important when it comes to disciplinary matters, as you generally want to be able to show that you provided an opportunity for the employee to correct their actions.
In addition to being used for disciplinary purposes, employee write-ups can also be used for performance reviews. When conducted properly, performance reviews have been demonstrated to have a positive effect on employee motivation, engagement, morale, and retention . Employee write-ups can be a useful tool for communication with employees as well as documentation. For these reasons, almost all employers use performance reviews in some form.
One of the main purposes of both disciplinary write-ups and performance reviews is to ensure that employees understand the expectations required by their employer. If an employee’s performance, behavior, or general attitude does not meet those expectations, the write-up serves as a formal warning that can be followed up with appropriate disciplinary action when necessary. This is particularly important in California, where many employment laws protect employees from wrongful termination. An employer who is faced with a wrongful termination claim has a much better chance of prevailing when there is a trail of documentation to support its decision to terminate the employment of the employee. Anything you can do to demonstrate that the employee was on notice of undesirable conduct or unacceptable performance will help you if the employee ever decides to sue your company.
The Law Surrounding Employee Write Ups
Certain key legal principles and state laws govern the way that employee write-ups must be conducted. It is a fundamental principle of California law that an employer must act in good faith and fairly investigate employee complaints of harassment, discrimination, or retaliation. Moreover, California Labor Code Section 98.6 prohibits an employer from retaliating against an employee because the employee ". . . has filed a complaint or instituted or caused to be instituted any proceedings under . . . this code or has testified or is about to testify in any such proceedings or has consulted an attorney for purposes of asserting rights under this code." (e.) Retaliation claims often involve evidence of biased or discriminatory performance evaluations, discipline, and terminations. Poor performance and discipline history can be crucial evidence that retaliation, as opposed to the reasons stated in the write-up, may have motivated the adverse action taken. Best practices and guidelines are available that describe how investigatory procedures should be conducted. For example, the California Fair Employment and Housing Agency provides information about how policies, including those involving employee discipline and termination decisions, should be developed and enforced. Relatedly, the Department of Fair Employment and Housing’s regulations prohibit employers from maintaining and enforcing work policies that are not job related and consistent with business necessity. See 2 Cal. Code of Regs. Section 11025 (c). For example, employers have been found to have engaged in unlawful employment practices when its disciplinary procedures (1) were not applied in a consistent manner; (2) did not provide employees with reasonable notice or opportunity to correct alleged defects; (3) were applied only to certain protected classes; and, (4) were not "job-related" and "consistent with business necessity."
Taken together, California employers must follow sound workplace policies, reasonably investigate any complaints of discrimination, harassment, or retaliation, avoid biases when evaluating employee performance, and carefully consider the language used in employee write-ups to avoid exposing themselves to liability for workplace discrimination, harassment, and retaliation.
The Proper How-To for a Write-Up
In order for a write-up to be effective, generally, the employee must be given the opportunity to respond to the allegations against him or her. Failing to provide this opportunity undermines the effectiveness of the write-up. Responding allows the employee to correct any potential misunderstandings. Further, it gives the employee the chance to discuss whether policy is being enforced consistently, or if other employees have not followed Company policy at times without receiving a write-up. The write-up should include factual evidence. For instance, rather than just writing "Employee was rude and insubordinate to Customer," the write-up should state, "Employee raised his voice several times with Customer and said "No," in response to Customer’s requests on 9/1/17. Customer stated that Employee seemed angry during the conversation." The write-up should be signed by the employee acknowledging receipt. If the employee refuses to sign it, have a witness sign it as well, stating that Employee refused to sign the write-up. Also make a note of this in the employee’s personnel file. If the employee ever claims "bad faith", you can argue it was the employee’s refusal to sign that shows the good faith of the employer in trying to ensure the employee was aware of the write-up.
Common Legal Questions
As with many areas of employment law, there are a number of frequently raised legal concerns about write ups. For example, one common claim in litigation is that the employer is using write-ups as a way to discriminate against an employee. An example would be if the employer began documenting an employee’s alleged poor performance after the employee complained of sexual harassment (in fact, there was no poor performance). Another example would be if the employer documents an employee’s poor performance only after learning that the employee is pregnant.
Another common claim is that an employee feels unfairly singled out by the employer for discipline or write ups. This usually comes up in situations where the employer has formalized performance standards and has a written policy that a certain infraction will lead to a write up and progressive discipline. An employee may ask why others are not being treated "the same way." For example, an employee may ask why a co-worker did not get written up for the same conduct. If there is any indication that the employer is applying its write up policy in a discriminatory manner, or using write ups as a pretext to disguise discrimination, the employer can be facing a claim for disparate treatment.
What an Employer Should and Should Not Do
To effectively manage the employee write-up process and reduce legal exposure, employers should consider the following:
Training Supervisors and Management. Decisions about employee discipline, including write-ups, should never be left solely to one person. Before taking disciplinary action, a supervisor should consult with human resources, the legal department and/or outside counsel. A supervisor’s knowledge of the company’s true reasons for issuing a write-up or other discipline can easily be misunderstood by employees defending against an employee’s claim that the company has engaged in discrimination or retaliation. Because supervisors are often the ones who have observed the employee’s underlying misconduct, however, supervisors should be thoroughly trained in: (1) identifying and documenting objective evidence of employee misconduct; (2) conducting performance evaluations; (3) collecting and preserving evidence of employee misconduct; and (4) preparing write-ups or other discipline.
Clear Policies and Consistent Application. Employers should have clear policies that define categories of unacceptable employee conduct and include progressive discipline processes with progressive consequences for violations. These policies should be posted and all supervisors trained in their consistent application.
Performance Evaluations with Written Justification. When it comes time to discipline or even terminate an employee , you’ll want to defend against allegations of discrimination or retaliation using written evaluations that document the employee’s level of performance and the basis for your assessment. Give constructive performance feedback and opportunities to improve as part of the evaluation process, and give notice about how the employee’s conduct is of concern. Without giving an employee opportunity to correct alleged problematic behavior, the company will not be able to establish that the employee was provided a chance to improve (and failed to do so), thereby justifying termination. Be consistent in your evaluations without putting the employee on notice of any risk of discipline.
Timely Actions. In California, the longer an employer waits to reasonably investigate allegations of misconduct and to address performance issues, the more difficult it is to argue that discipline such as a write-up is warranted. Time is of the essence in documenting and addressing employee misconduct. For example, if an employee has a history of conduct, take disciplinary action without consideration of how much time has passed since the employee last committed the offense.
Employee Rights and Remedies
Employees who have been issued a write up for violations they did not commit, or that have been created by an employer due to personal bias or discrimination, need not fear upsetting their employer by complaining about it. They have the right to do so. Moreover, an employee cannot be fired for reporting discrimination. The law prohibits employers from firing or discriminating against employees who complain about unsafe working conditions or workplace harassment. There are also protections for those in senior or supervisory positions as well, so there is no reason for anyone to not seek assistance for such issues. California employee rights extend well beyond the scope of protection just mentioned. If an employer is shown to have violated these employment laws, and has filed false accusations with government agencies, it can face severe penalties. A write up that is based on a prohibited form of discrimination creates liability for an employer. If a discriminatory write up is shown to have contributed to the plaintiff’s non-promotion or termination, then this can create a basis for liability in a California employment lawsuit. Another way that employees can fight back on an unfair company reprimand is to gather a statement from co-workers. California labor laws also require that employees be able to get access to their employee records, including all memos, notes, write ups, reviews, etc. This means that if the employee does not agree with the write up, they may attach their own memo stating their side of the events, or their feelings on the issue. Additionally, all new complaints about work place conduct should be made in writing, and kept on hand to show that the employee was attempting to take steps to inform the employer of their side of the issue.
Case Examples
The above-noted exceptions only apply to alleged employee misconduct. There is no requirement that the employer conduct an internal investigation if the employee is formally charged with a crime. However, absent unusual circumstances, such as where the employee has harmed a co-worker or engaged in blatant and continuous misconduct, employers often find it beneficial to conduct an investigation following the initial employee write up.
Consider, for example, the recent case of Miller v. Protection & Advocacy. The plaintiff, Pamela Miller, alleged in her lawsuit that she had been discriminated against and harassed by her supervisor, Nancy Davenport, at their workplace for over a year. Miller sued both Davenport and Protection & Advocacy, her employer. In its defense of Miller’s suit, Protection & Advocacy produced a handwritten, three-page employee write-up that Davenport had prepared for Miller. Davenport wrote the fireable offense write-up after an incident where Miller was found asleep during a mandatory staff meeting. Davenport had determined that Miller was out of compliance with the Family Medical Leave Act and intended to take disciplinary action against her, including a final written warning. However, Miller was never disciplined because she resigned prior to the imposition of discipline.
Miller argued at trial that she had been discriminated against and/or harassed by Davenport and that she had been fired and discriminated against for reasons different than those stated in the employee write up. At trial, Protection & Advocacy introduced the employee write-up to show that Miller’s sleepiness during staff meetings was the real reason for her termination. Miller contended at trial that the employee write-up did not accurately summarize the discussion she had had with Davenport. Miller claimed the employee write-up did not include the parts of the conversation where Miller told Davenport that she had been taking Ambien (a prescription drug used primarily for treating insomnia) and that she had informed her supervisor that the Ambien was making her drowsy but that she was still willing to fulfill her job duties. The jury found in favor of Miller. On appeal, the California Court of Appeal concluded that the employee write-up – in which Davenport "admitted" that she had made McKinnor "stay awake during meetings" – constituted evidence of pretext for discrimination. Moreover, the court found that the employee write-up "would definitely afford the Plaintiff a fair opportunity to attack" Protection & Advocacy’s "claim of a legitimate, nondiscriminatory motivation for its adverse employment decision." Finally, the court found that the employee write-up "was also important to evaluating the credibility of the testimony Protection & Advocacy sought to introduce in favor of its affirmative defenses, as well as its evidence tending to show that McKinnor was guilty of misconduct, that it just was not aware of it at the time it fired her." For these reasons, the Court determined that the trial court committed reversible error for allowing Protection & Advocacy to redact, destroy, or otherwise fail to introduce the employee write-up into evidence.
Employee write-ups do not always result in litigation. However, the Miller case demonstrates that when they do, it is critical to consider all related information that might be helpful for a company to keep or search for in on-going or future claims.
Conclusion: Write-Ups and the Law
In conclusion, understanding the legal implications of write-ups and performance reviews is essential for both employers and employees in California. Employers must be aware of the potential consequences of discipline without proper documentation and engagement of employment attorneys. The risk of claims, fines, and even criminal charges for wage theft is real and must not be ignored.
For employees, a thorough understanding of their rights can help them navigate the often murky waters of performance reviews and write-ups. Knowing when and how to raise concerns about perceived discrimination or other biases can be critical to preserving their rights and interests.
Both employers and employees should strive to work within the confines of the law , rather than assuming that their employer "won’t do anything anyway." This kind of thinking can leave you vulnerable to violations, complaints, and potential lawsuits.
Employers and employees can also benefit from implementing best practices in their employee performance reviews and related actions. This includes keeping clear, consistent, and detailed records of performance and disciplinary actions, enacting policies that promote fair treatment, and providing appeal and resolution mechanisms for employees who may be facing discrimination or unfair treatment.
By taking these precautions, employers and employees stand a far better chance of avoiding the unnecessary pain and cost that can accompany employment issues involving employee write-ups in California.