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Documenting Performance Problems

Why Documentation Matters

The importance of documentation​ can’t be overstated. Documentation is a weekly, sometimes daily, responsibility of every manager. It not only ensures that you’re on top of employee performance, are balanced in your critiques of them and treat all of your employees equally. It’s also extremely helpful when it comes to performance appraisals, warnings, discipline/counseling meetings, nominations, promotions, and every other aspect of employee management and development.

Most important, if you need to terminate an employee or if an employee ever files a legal claim against your company, you have evidence of what truly transpired. Keep in mind that legal proceedings can occur years after a termination or dispute. It’s unlikely that a “good memory” will help you win a case.

Document everything worth noting about an employee’s performance, both good and bad.

Besides good performance, you’ll want to document incomplete or subpar work, arguments, poor communication, irresponsibility, insubordination and, of course, harassment, discrimination or criminal activity.


Make excuses about being too busy. Keeping accurate documentation saves you time in the long run and serves multiple purposes.
Create documentation too long after the fact. It is often less accurate and can look suspicious to a jury if there is legal trouble down the road.
Write about attitude or assess character traits in your documentation. Instead, stick to behavior and objective criteria … and to the facts! For example, “bad attitude” is vague and subjective. It’s better to note the actual behavior, with specific examples of the employee’s actions and words, leading you to conclude that there is an attitude problem (e.g., the employee was rude to a customer, short with you, unwilling to help a coworker upon request, etc.).
Wait until a formal meeting to discuss good or bad performance. Communication should be ongoing, and employees should never be surprised at a performance appraisal or termination.
Share performance information with anyone other than those who need to know. Keep confidential information secure at all times.


Be objective and professional. Never use threatening or accusatory language. Also be certain that your own personal opinions or biases don’t appear in the documentation. Emphasize performance.
Think of documentation as evidence. Though it serves countless functions, it may also be brought before a judge or jury someday.
Follow up meetings or conversations based on documentation with – yes -- more documentation. Include employee response, reaction and any agreement reached. Be sure to get the employee’s signature as evidence, even if it’s just acknowledgement that the document was received. (If an employee refuses to sign, have a witness note that the document was presented to the employee and it was rejected.)
Provide plenty of examples to back up your claims.

Rely on Performance Management Tools

There are numerous tools of the trade to assist you with documentation, including:

Performance journal. Whether paper or digital, this is your prime source of documentation for an employee’s day-to-day performance. You’ll use it as a source in writing memos, warnings and reviews. Write down significant events concerning each of your employees when they occur.
Performance memos. Use performance memos to communicate with an employee about significant, positive events. List details of the event or incident and describe the impact of the event on the company. Send a memo, for example, when an employee beats a quota or receives praise from a customer.
Counseling forms. Create a written document whenever you hold a closed-door session with an employee about a performance issue. Besides the facts of the situation, describe the impact on the company, the improvement expected, the consequences of continued subpar performance, and an action plan for eliminating the problem.
Warnings. Use a warning form when you’ve counseled and coached to no avail. Document the type of violation, describe it, record the employee’s response to the situation, and describe the consequences of additional violations.
Final decision forms. Has an employee proven resistant to coaching, counseling, or corrective action through warnings? It’s time for the employee to make a final decision. Consider using a “final decision” form giving the employee but two options: shape up, or ship out. The employee either agrees to comply with policies or work requirements, or chooses to resign voluntarily.
Performance appraisal forms. A good appraisal form (or “performance evaluation”) lists core objectives, provides space for developmental goals, and lists a few dozen behavioral traits upon which you can assess employees. Formal appraisals should be conducted at least once a year, or more frequently according to company policy.

The Impact of Employment Laws on Performance Management

Each of the following laws applies to employment decisions, so it pays to keep them in mind as you manage performance.

Title VII of the Civil Rights Act of 1964 (Title VII)
This law prohibits discrimination and harassment based on a person’s race, color, religion, sex or national origin. It applies to employers with 15 or more employees.

How the law affects performance management: Title VII affects all aspects of managing performance -- from hiring to firing and everything in between. In short, the law says you must ignore physical, cultural, national, and religious characteristics in hiring, training, promoting, appraising, disciplining, and terminating employees.

The Pregnancy Discrimination Act
This law, an amendment to Title VII of the Civil Rights Act, says you can’t discriminate on the basis of pregnancy, childbirth or related medical conditions.

How the law affects performance management: In addition to steering clear of color, religion, nationality and other so-called “protected” characteristics when making employment decisions, look past a woman’s pregnancy as it relates to her fitness for work. Never assume she’s unable to do a job. And if a pregnant woman is up for a promotion or another opportunity, simply treat her as you would any non-pregnant employee.

The Equal Pay Act
This law, which applies to most organizations, is simple: You must offer equal pay for equal work. To stay on the right side of the law, assess a job’s skill level, effort required, working conditions, and level of responsibility. When these are equal for jobs in the same workplace, the jobholders generally must be paid the same.

How the law affects performance management: You cannot discriminate against an employee based on sex when setting salaries or awarding raises. But keep in mind: You may pay unequally based on seniority, merit, or the quantity or quality of work. Focus on these attributes in any performance documentation used for compensation decisions.

The Americans with Disabilities Act (ADA)
This law, which applies to employers with 15 or more employees, prohibits discrimination against a “qualified person with a disability because of the disability.” The disabled still must be able to perform the job’s essential functions, with or without what are called “reasonable accommodations.” Accommodations help employees perform a task or function. Employers are not required to provide an accommodation if it would result in “undue hardship” – a legal standard to be decided on a case-by-case basis with professional advice.

How the law affects performance management: The ADA requires you to be flexible in managing the performance of disabled employees. That flexibility ends, however, when it comes to holding ADA-protected employees responsible for meeting reasonable standards. In managing a disabled employee’s performance, start with an understanding of the job’s essential functions. Then make sure the employee has the tools, information, and reasonable accommodations needed to do the job. That done, you can manage performance just as you would for any other employee.

The Family and Medical Leave Act (FMLA)
The FMLA applies to employers with 50 or more employees and to public agencies with any number of employees. Covered employers must grant an eligible employee up to a total of 12 weeks of unpaid leave during any 12-month period:
For the birth and care of the newborn child of the employee
For placement with the employee of a son or daughter for adoption or foster care
To take medical leave when the employee is unable to work because of a serious health condition
To care for an immediate family member (spouse, child, or parent) with a serious health condition
When the employee’s spouse, son, daughter or parent is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces

The FMLA also provides eligible employees with up to 26 workweeks of job-protected leave to care for a spouse, son, daughter, parent or next of kin who is a member of the Armed Forces or a covered veteran and who is undergoing medical treatment or recuperating from a serious injury or illness incurred while on active duty.

How the law affects performance management: The law prohibits you from retaliating against someone for taking FMLA leave. You may discipline someone covered by the FMLA, but it must be for legitimate business reasons (e.g., violating work rules) unrelated to the FMLA absences. The FMLA also allows intermittent leave taken in short blocks of time. This is something you may need to take into account when counseling or rating an employee on issues like absenteeism, time-management skills and anything else that might be affected by FMLA-protected leave, whether intermittent or continuous.

The Age Discrimination in Employment Act (ADEA)
This law, which applies to employers with 20 or more on the payroll, says you can’t discriminate against employees aged 40 and over.

How the law affects performance management:When you’re offering promotions, training opportunities, raises and so forth, keep age out of the equation. When managing performance, never – even in jest – refer to an employee’s age in connection to a job. And never assume an employee over 40 can’t do a job. You need not, however, hold ADEA-protected employees to lower standards than you would any other employee.

NOTE: Don’t overlook local employment laws. Your state or locality may have employment laws similar to the ones listed here. But they may apply to organizations with fewer people on the payroll, or they may offer even broader protections. For more information, talk to your state labor department or a local employment attorney.

Employee Warning Report - 4-part
Do performance problems persist?
Jaime Lizotte
Hosted by Jaime Lizotte,
HR Solutions Manager
In this webinar, you will learn: the top HR functions that can easily be handled with inexpensive cloud apps; the "five degrees of integration" that determine whether cloud apps will really save you time, and more...