JKD Law Blawg

Leagl insight & information for legal professionals

Employee Warning Letters: Answers to Common Questions (Part II)

Last month we discussed the basic outline to follow when writing
employee warning letters.  This month we will discuss common issues and questions that come up when delivering a warning letter to an employee.

Question: What if the employee refuses to sign the warning letter?

Answer: First of all, check to see if the warning letter includes a
disclaimer statement along with the signature block.  It can be very intimidating for an employee to sign a warning letter and a statement like the following can help ease the employee’s fears: “Signing this document confirms that you have received it andunderstand its contents.  Your signature
does not necessarily mean that you agree with all of the statements made in the document.”

Otherwise, if the employee refuses to sign the warning letter, two managers should witness the refusal and then sign and date the letter under the statement “employee refused to sign”.  The employee should then be respectfully informed that the letter is in force regardless of his or her refusal to sign.  It is also important to examine the reasons behind the employee’s refusal to sign. It may be necessary to have a respectful dialogue with the employee to confirm that he or she is willing to meet company expectations in the future.

Question: What if the employee wants to provide a written rebuttal to the
letter?

Answer: Knock yourself out!  If the employee wants to write a rebuttal, don’t fight with them about it. The written rebuttal can be stapled to the warning letter and kept in the personnel file.  The employee should be informed that the warning letter is in force regardless of his or her written rebuttal.  The rebuttal should also be examined for any useful insights, claims from the employee that the company has violated the law (e.g., claims of discrimination, etc.), and any statements that would cause the
employer to reasonably question the employee’s ongoing employment status (e.g.,threats of violence).

Question: How long should the warning letter remain in the employee’s file?

Answer:Some employees mistakenly believe that there is “some law out there” that requires employers to remove a warning letter after one year.  This is incorrect.  The employer has the right—and generally should—keep the warning letter in the employee’s personnel file indefinitely.  The warning letter is an important record about the history of the employment relationship. There are many reasons why the employer may have to produce the letter later on (including for legal proceedings that do not involve the employee directly) or otherwise review the employee’s employment history.  Of course, the warning letter becomes less important as time passes and the
employee meets company expectations, but the warning letter should stay in the file.

This article should not be construed as legal advice.

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