Termination Papers/Discipline Papers

Is it mandatory to give copies of right ups, performance reviews or termination papers to the employee?

As of today, I do not give them a copy, and my handbook states that they can look through their personnel file but cannot copy or take anything.

The more trouble they, or their lawyer, has to go through to get copies the better I am. Right?

Thanks.
-t
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Comments

  • 53 Comments sorted by Votes Date Added
  • I don't say this to be contentious, but...

    It all depends on what your HR purpose is -
    To make things harder on lawyers, or to provide your employees with meaningful feedback and the tools to make themselves more productive.

    ...just my two cents.
  • Good reply, but we do go over every item with the employee before it goes in their personnel file. We also offer mentoring and re-training programs if the disciplinary action is a result of not understanding or making too many errors.

    I had an employee who was written up for being too negative, always bringing other employees down (she was over 40). It made her so mad she quit. Even though I had back up documentation, because we document everything, leading up to the written warning, I still don't want to end up in a court room telling my side of the story.

    I just don't want to make it easy for someone else to make my life harder and I'm not one to try and "get an employee" or try to ride just the legal side of something. I want to do what's right, but also protect myself if an employee feels wronged.

    -t
  • I don't know about mandatory but we our employees must sign all discipline and are routinely given a copy.
  • While they are employed, we provide copies of anything they sign during their employment.
  • Very similar to Marc. With disciplinary action I normally ask the ee if they want a copy. Anything else they sign they may have a copy if they request it.
  • Ditto... we provide a copy to the employee at the time of the performance review, counseling session, etc... We allow our ee's to look through their personnel file basically at any time as long as someone from HR is with them. It is my opinion that there should not be any surproses for the ee in their personnel file. They should already have seen and been given a copy of most everything that is included in their file.

  • I think what you are asking is really a judgment call. In Florida it would be. And I think your first reponder was accurate in questioning your motivation. My question might be more frank: Are you making the change to make your job easier for yourself or others. HR positions are typically overhead, nonrevenue producing, and while very necessary can hurt their effectiveness by being an obstruction rather than an aid to the organization. Also, part of an HR function is to advocate for workers. I would err on the side of giving a copy as my judgment call for a couple of reasons: it would help secure your legitamacy for employee buy in to your function, it would help serve as an evidenciary step to confirm that an employee would have less leverage to question something of which they have had explained "and given a copy," and you may be setting yourself up for a more timeconsuming task of allowing some workers to review their personnel files. From where I sit as an HR person, your step sounds like a domino result may be an antagonistic relationship with your workers. Focus on your intent for making the change.

    Best wishes.
  • Ditto here: We give copies of everything to the employee at the time of the discliplinary step and their termination papers.

    Shirley
  • We also give copies of anything signed by the employee disclipine, reviews, etc to the ee before placing in personnel file. Being in government in the state of Florida, governed by the Sunshine Law, any request for copies from ee's or their attorney MUST be honored as long as it is presented in writing, no court order is necessary. Basically anything placed in files must be defensable if needed, we are in a fishbowl.
  • If an employee is going to sue, his/her attorney will get access to the documents through a subpoena. So, if the employee (or representative) will get a copy anyway, why not provide it up front? Also, some people may find this hard to believe, but lawyers are people too. If you make things difficult for them, they may decide to make things difficult for you. Being courteous and even helpful to the lawyer could help convince him/her that you are not the horrible person the employee is making you out to be.

    Lastly, I agree with others, if the purpose of the document is to help the emplyee improve, why not allow the employee to have a copy to refer back to?
  • We allow our employees a free copy of everything in their personnel file once a year if they request it. They have to pay for copies if they ask for it more than once a year. (Luckily so far I've only had a couple of requests over several years).
  • For a current EE, the copy process is no big deal. If it is an ex-EE, then I would be way more resistant to giving up anything in the file.

    I do want to make it difficult at that point. If an EE wants to bring an attourney in, then that attorney will not get a free look. The EE and/or the attourney are going to have to work for it.

    Lawyers have to earn a living too, and if they think they are going to have to work hard for the money, they may reconsider a marginal case. But if they can get a free look at the file, it makes a fishing expedition a lot more palatable and also more likely that one would take on a case on a contingent basis.

    As I said though, that is after the EE is gone and has been gone for a while. I believe Nevada law allows copies up to a year after they have gone.

  • >lawyers are people too.



    Just the rare exceptions who post here. ;)
  • I can understand the reluctance...

    i also agree Lawyers are people too!

    I can tell you that if you a reluctant to give out information that it could make it look like you are hiding something if you are honest and forthcoming it would probably leave a much better impression.

    If they really want the files they will get them anyway through the court.

    Shirley
  • In the interest of presenting an alternative view, do you all give copies of your company's financial statements, customer lists, pricing information or future restructuring plans? Probably not (at least I would hope not), as that information is normally treated as company confidential documents, not to be shared or distributed to whoever wants a copy. The company may wish to communicate portions of that information as it deems necessary to keep employees apprised, but providing copies is not normally done. The personnel file should be treated the same way, IMHO. Disciplinary warnings, performance reviews and certain other contents certainly need to be discussed openly and frequently with the employee, but I feel there are many reasons COPIES should not be provided: desire to maintain confidentiality of the documents; prevent the documents from being seen and discussed by other employees; protect the company from compromising its legal protections if lawsuits are filed. Allowing copies to made from a company file invites too many potential problems that need to be weighed against the percieved benefit of letting employees free access to copy file contents.

  • >The company
    >may wish to communicate portions of that
    >information as it deems necessary to keep
    >employees apprised, but providing copies is not
    >normally done.


    I would be willing to bet that providing copies of evals, write-ups, etc., is the rule rather than the exception.
  • I don't know about it being a rule (is in our company we have duplicate copies -White for HR -yellow for supervisor-pink for employee.) but I know most HR reps in this area of the woods provide copies to their employees.

    I have found in the last 25 years of service to my company that the more open and honest we are with the employees the more respect and loyalty we gain from them.

    We have 80% of our staff with 5 years or longer tenure and in the last 5 years I have only had to termiate with cause 2 people.

    I do only put in the Personnal file the minimum that needs to be there. If notes are written I require the supervisor or manager or employee to type it out , date it, and sign it before it can go into the file. No handwritten notes, no trivial stuff, just what essentially needs to be there.

    My employees have an annual appraisel form, and any disclipline notices , new hire information, and tax information. Once in a while if warrented type, dated and signed comments are put in the file.

    Keeps it simple. We only issue 3 warning notices before a termination, so for a 5 year employee you would have 5 performance appraisels, and if they had warnings, 3 warnings and maybe a page or two of comments. W-4 maybe two or three if there were changes, and a new hire information sheet and a confidentiality signed agreement. No so much to copy.

    Training is in the training folder, Insurance is in the insurance folder and 401K is in the 401K folder. I-9's are in a separate locked cabinet.

    Shirley

  • >>The company
    >>may wish to communicate portions of that
    >>information as it deems necessary to keep
    >>employees apprised, but providing copies is not
    >>normally done.
    >
    >
    >I would be willing to bet that providing copies
    >of evals, write-ups, etc., is the rule rather
    >than the exception.

    I agree. There's a big difference between sharing confidential company documents "to whoever [sic] wants a copy" and providing documents *directly related to the employee's employment* with that employee him/herself. I don't understand the rationale behind hiding this information. If a lawsuit is filed, there are no legal protections that are going to prevent an employee access to these documents, regardless of whether you keep them secret prior to litigation. But really, there shouldn't be any reason why you would mind sharing this info with the employee. When you document performance issues, ask yourself, "If a lawsuit were filed, would I mind the other side (or a jury, or judge) seeing this document?" If the answer is yes, then you might want to reexamine your documentation practices. Since I assure you, if a lawsuit IS filed, the other side WILL see the document.

    Not to mention that as soon as you refuse to show an employee his or her personnel file, the employee's going to start thinking, "Why, what's in there that you don't want me to see...are you doing something illegal?"
  • I do allow employees to view their files, and they are perfectly aware of what is in there. Nothing goes in the file that they don't know about. I just don't give them a copy.

    -t
  • I'm dumbfounded that you don't provide your employees copies of documents that they have every right to have.

    What happened to common courtesy? This would be considered common courtesy in any business.

  • Current EEs get them, but cooperating with an ex-EE whose intent is to sue the company does not require courtesy. With all the problems the courts give us about consistent application of policies, once a former EE is outside the State mandated laws regarding access to the files, then I don't give access.

    I don't see the need to help someone hurt the company it is my job to protect.
  • In protecting your company you may be doing them more harm.

    If the papers are current, correct, and all in order and the attorney sees this he will not take the case, but will say to the employee you do not have a case.

    If you are reluctant or refuse the papers both the employee and the attorney will think you have a reason for doing so and will be more likely to want those records just for that reason to find out what you are hiding.

    It is what is called the ara of suspicion. By trying to protect the company you could actually be making them look guilty of something.

    As HR Director, I am not the watchdog of the company. My job is not to protect the company. My job is to complie and provide accurate information, to do my job to the best of my ability and to be open , honest and fair with everyone, the Company and the employee.

    I like to think that I can project the company in a positive manner by being open, honest and fair with any former employee or outside involved party without compromising my company in doing so because our records are up to date, complete and correct.

    Shirley
  • Sorry, this is long.

    It is not mandatory, but your original question was: "The more trouble they, or their lawyer, has to go through to get copies the better I am. Right?"

    I would say no. Remember that the purpose of a personnel file is to create a record of information directly related to an employee's employment situation. If an employee sees you as being secretive with regards to what is in his file, he will likely turn on the defensive with you and it could possibly create performance problems. I personally think it best to be open with your employees. If you're going to discipline them for something and document that session, I think its worth it to give them an opportunity to obtain a copy. In any case, you should have them sign off on the disciplinary form. I think that employees should have copies of everything that has their signature, should they wish to have them. This is valuable when it comes to documentation for termination. If you can show that they knew what was going on with their employment situation, its hard for them to prove you fired them for no good reason.

    There are also things that maybe they don't need to have - many supervisors write out notes they use during performance evaluations - employees don't necessarily need these. I would tell you to be selective with what you provide and do not provide - there's no harm in doing that.

    The other posters are right - there's no use "making things harder for the lawyers" because they are going to get their hands on them anyway with a document subpoena. Acts of good faith go a LONG way towards settlements in lawsuits. I cannot tell you how many times I've had opposing counsel adopt a "tit for tat" mentality.

    Good luck and remember that your job with the files is to create an accurate, unbiased record of the employee's history...not create a barrier for open employee/employer communications.

  • I have to assume all or most of the posts so far are from non-union environments. It has always been our practice to provide employees of any disciplines, including terminations, at the time they are issued. Just as you require their signature (or a refusal to sign statement) at the time of issuance, a copy given to the employee provides proof of issuance. In the case of union representation, it also provides a record for union reps so their is no question of issuance or timeliness of discipline. Consistency is critical. If you eliminate the challenges before they happen, you actually move any burden of proof from the Company to the employee or to the union. Your most important relationship is with your employees, and being open and honest, as well as fair and consistent, keeps the lines of communication open and hopefully reduces attorney involvement, and unwanted union activity.
    I agree that personnel files should not be used to acccumulate meaningless info. Employees should have the right to view their entire file, but only copies of material they should already have should be provided. Remember that the entire file is company property.
  • [font size="1" color="#FF0000"]LAST EDITED ON 03-05-07 AT 11:40AM (CST)[/font][br][br]To equate a prohibition on file copying to accusations of being discourteous, fearful of being open with employees and secretive is an unfair characterization. I don't beleive anyone said that you shouldn't allow employees to view their file contents and openly discuss reviews, disciplinary actions, etc. Additionally, getting employees to sign all those documents is also highly recommended. But allowing copying of file contents is just is not necessary in the eyes of many companies as it is viewed as exposing the company to unncessary risks that are better avoided. It often just boils down to as a desire not to hand out confidential information, or information the company does not want discussed or shared with other employees. That doesn't mean the company is hiding anything, just protecting itself from the potential downside of the practice. It shouldn't be viewed as sinister plot to keep employees in the dark. There are numerous ways to keep employees informed about the contents of their file and allowing them to personally view their file is playing with an open hand. However, there is nothing wrong with drawing the line by stating to the employee you don't allow copying of the file contents as it is deemed a confidential company record and ONE of the reasons is you don't feel that such documents should be avaialble for other employees to see. If some of you think there is zero risk of copying and distributing, on demand, each employees' performance reviews, disciplinary write-ups, investigatory notes, witness statements and the like, then go ahead and continue the practice. But let's not label the practice of NOT allowing copies of company documents as some draconian policy only performed by uncaring companies who don't freely communicate with their employees. It's merely a risk management strategy.
  • >If some of
    >you think there is zero risk of copying and
    >distributing, on demand, each employees'
    >performance reviews, disciplinary write-ups,
    >investigatory notes, witness statements and the
    >like, then go ahead and continue the practice.

    I don't think anyone here would suggest that employees should get copies of investigative files... at least, I haven't heard that yet.

    I also see a bit of a risk in trying to prevent employees from sharing information with other employees, FLSA-wise.

  • I support your thoughts Frank. I think we are on the same wage length.

    I guess it is all a choice and policy company per company and HR representative per HR representative.

    I am not changing my methods they have worked well for 24 years for me...only one claim and it was dismissed because I had good records.

    You all can duke it out! This horse has been beat to death and I am going to let it die!

    Signing off in Idaho!
  • Yet you don't see "a bit of risk" in having performance reviews or disciplinary write ups floating around for anyone, inside or outside the company, to potentially view?
  • Nope.


    My premise is this...

    The eval, disciplinary notice, etc., by its nature has an affect on an employee's pay and/or career. I take that very seriously. (And no, I'm not suggesting you don't.)

    When that employee walks out of the meeting with their pink, white or canary copy, they're holding a document that I will stand behind. If they choose to share it with the world, I could not care less... and it's amazing to me how many employees will reveal their wrongdoings to their friends in the search for sympathy.

    Giving a copy to the employee accomplishes two major purposes. First, it tells all employees that I stand behind what I'm saying. Second, it gives me that much more motivation to think documentation through and give it the careful consideration it deserves. If they choose to share it, then it frequently accomplishes a third purpose - co-workers who may have been sympathetic after hearing the revisionist oral version typically have a less sympathetic reaction after seeing the written facts.

    I understand your risk-related concerns. I would argue that my method is more effective in managing risk. I think lifting the veil of secrecy results in more accurate and relevant documentation, and also provides a basis for a more constructive relationship.
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