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Due process: if it’s not written, it didn’t happen

By Steve M. Cohen  bio

Imagine an employee who is consistently late to work. The excuses abound—car trouble, overslept, lost track of time answering email, planned on staying later—you’ve probably heard them all.

The manager warns the employee and for a week it improves. The next week, however, the employee is slipping again and is warned yet again. This game continues and the behavior is having a negative effect on the organization. Termination is being considered. Most managers know this, but often stumble on some details. For example, even if there are witnesses everything must be documented.

The documentation must be done very carefully. It starts with a written documentation of the oral warning. It is necessary under the law to draft this document ex post facto, after-the-fact. The manager has two documents to draft. One is the written documentation of a written warning (written in present tense), and the next is the ex post facto written documentation.

The written documentation of the oral warning is in past tense and documents the counseling session that occurred in the previous weeks or months when the matter was first addressed. The written documentation of the written warning is in present tense documenting what the manager is doing presently in an attempt to correct the matter.

The format for the documentation is always the same. The first paragraph is a succinct description of “what went wrong.” This is usually a three or four sentence overview. No treatise on the background or context of the situation is required.

The second paragraph is an explanation of what the policy is, or what the company’s expectations are, relative to the situation. This is three or four sentences and may include the actual restatement of the related policy. Sometimes, I like to include a statement of the company’s values in this paragraph. This portion could even be written specifying that it is not a part of the company’s values for any employee to exhibit these behaviors.

The next paragraph is a description of the plan of corrective action. This must include a timetable for the corrective action to become obvious, as well as a statement of the consequences that will follow if the plan of action is not implemented.

It is important to state that “further disciplinary action up to and including termination” could result if the situation or problem is not fixed. The write-up must include the word “termination” so it is crystal clear that this action could result. I have been in front of administrative hearing officers or the judge in a civil case, where the terminated employee has said, “I knew I was in trouble, but I didn’t realize that I could lose my job over this. After all, I only stole from them…or I only threatened to slug my boss. Does that seem like a termination offense?”

The bottom line is, if an employee could be terminated if a situation continues, then the write-up must specify that termination could result.

The documentation also needs to be directed to the personnel file, not to the individual. In addition, the document needs to be addressed not to the individual, but to the individual’s personnel file.

It can’t be stressed enough that there needs to be a written record of a written warning. When the manager enters this stage, there is a need to go back and document the oral warning as well. Remember, if the situation is fixed, there is no need to document it, but if it’s not fixed over time, recurring “bad” or incorrect behavior needs to be readdressed by the manager.

Steve M. Cohen, Ed.D., CMC is President/Partner of Labor Management Advisory Group, Inc. and HR Solutions: On-Call, both based in Kansas City, MO. For more information, visit or call (913) 927-0229.

The above information is shared by a guest contributor and does not necessarily reflect the views of Medical Office Manager.









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