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Dilemma of the Month: How Do I Document an Employee’s Unethical Behavior?

Back Article Feb 6, 2024 By Suzanne Lucas

This story is part of our February 2024 issue. To subscribe, click here.

A toxic employee, “Bob,” engaged in unethical behavior; we wrote him up, and then he ran his mouth about it to the whole department. He is not speaking with his boss and is now resorting to name-calling. We have a good policy handbook to back us up to terminate him. The tricky part: We recently denied his workers’ compensation claim, and he’s in the appeals process. We have court in two weeks. A termination for cause will also make him ineligible for unemployment, which I’m sure he’ll fight. Any advice for documenting and handling this?

Let’s jump to the trickiest part — the workers’ comp claim. Workers’ comp is always tricky, and because you’re headed to court anyway, I presume you have your workers’ comp carrier and the lawyers involved. You should always turn workers’ comp claims over to the experts. Your job in HR is to get the employee the paperwork. The denial should come from the experts, not from in-house. It should not be your decision. 

Now that we’ve handled the problematic ends of the spectrum, let’s deal with the documentation about Bob’s toxic behavior. We often tell people to document things without clarifying what that means. I’m here to help: To document is to record information so that someone can read your documentation and know what happened without asking questions.

That’s a tall order, but it should be the goal. You are going to focus on objective facts as much as possible. Try to keep the subjective out of it. Here’s an example straight from your question: “A toxic employee engaged in unethical behavior.” While that’s sufficient to get advice from an advice columnist, it’s not enough documentation. It’s full of subjective opinions.

Subjective: Bob is a toxic employee.

Objective: Bob insults his coworkers. He told Jane she was stupid, Steven he was fat and questioned Jose’s immigration status.

Subjective: Bob engaged in unethical behavior.

Objective: Bob falsified his time card, saying that he clocked in at 8:00, but we have video evidence that he arrived at 8:30.

Do you see the difference? “Toxic” is a term that can mean anything to different people. It’s thrown around so often that it means nothing. “Unethical” is equally vague. Use specific examples rather than a generic term.

When documenting use dates, times and locations as often as possible. If you don’t know precisely when something happened, indicate that the time is unspecific, like this:

On February 5, 2024, Jane Doe reported to HR that Bob repeatedly called her stupid, incompetent and incapable of doing her job. Jane says this has taken place consistently since November 2022 and happens at least once per week. Jane states she didn’t say anything earlier because she wanted to “keep her head down” and “get her work done,” but she feels it has escalated since December 2023.

What you don’t say is why you think this happened. You’re just laying out the facts. Another fact may well be:

The workers’ compensation insurance carrier denied Bob’s claim on December 13, 2023. Jane, Steven and Jose all report an increase in Bob’s bad behavior in December.

Correlation does not equal causation, even in documentation. When you write your conclusion or findings, you can note that because of this correlation, you believe Bob responded negatively to his coworkers because of the workers’ comp case.

When you do have exact dates, use them.

Bob noted that he arrived at 8:00 on January 2, 2024. Security footage shows Bob arriving at the parking lot at 8:15 and walking into the building at 8:22. Bob charged $82.73 on his company credit card at the Shell Station on December 31, 2023. $70 was for gas for the company vehicle and $12.73 was for beer. Purchasing beer on the company card is against policy. Carol Smith, in finance, sent an email to Bob that he needed to pay the $12.73 and informed him that he is not allowed to use the company card for personal purchases. A copy of the email is attached.

Terminating a bad employee can be complicated. But if you carefully document each offense with details of what it was and when it occurred, it can make the process go smoother.  

Send questions to evilhrlady@gmail.com.

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