Corrective Action and Documentation
Poor performance or bad behavior on the job can take many forms. It is ultimately the supervisor’s job to identify and then try to modify the undesirable performance or behavior of the employee so that it is in compliance with expectations. That, in a nutshell, is corrective action.
In the workplace we typically use a verbal or written warning or counseling to communicate to the employee what he/she is doing wrong; what needs to be done to correct the problem; and what will happen if the problem is not corrected.
Verbal counseling is to be used when an employee initially fails to meet behavioral and/or performance standards. An employee’s continued employment should not be threatened at this stage. Do your fact finding first. This includes talking to the employee to get his/her side of the story before you give any kind of warning. The verbal counseling should include, behavior/performance that is unacceptable, positive suggestions for improvement, and consequences to productivity or performance of failure to correct problem. Try to find out why the employee's performance or behavior is unacceptable and help the employee plan for a change. Do not give the employee a written document for a verbal counseling. You may document that you gave the counseling in your notes. You should have talking points that you use to speak to the employee to ensure that you stay on point and these talking points will serve as your documentation that the counseling occurred. It may be of limited value as documentation but if the verbal counseling changes behavior then you have accomplished your goal.
The written warning has two purposes. It is used to communicate with the employee so that, hopefully, the performance or behavior will be improved. It also provides documentation so that should the employee not change his/her performance or behavior and then termination of employment occurs, the university will be able to demonstrate that the termination occurred solely because of the employee's failure to meet expectations rather than any nefarious motive that may be alleged by the terminated employee.
A written warning is to be used for a more serious offense or when the response to a verbal counseling is not sufficient. You do not necessarily have to give a verbal counseling before you can give a written warning. Do your fact finding first. This includes talking to the employee to get his/her side of the story before you give any kind of warning. Do not give an employee the written warning at the same meeting in which you do fact finding. Use the “What if I got it” test. Does it make sense, is it appropriate? It may be necessary in a written warning to make it clear to the employee that his/her continued employment may be in jeopardy if the appropriate response is not made to the written warning. Review the written warning for tone (do not get personal), content (do not bring up a laundry list of the employee’s sins), clarity (will it make sense if read by an outsider?), and value. It must be signed by all parties and then it has great value both as a behavior modifier as well as documentation. Have the written warning reviewed by HR or your manager.
If you have an employee whose performance/behavior does not meet expectations, what do you do? You take corrective action and when taking corrective action with employees, your job as a manager is to use the skill and expertise necessary to effectively change the employee's behavior/performance, and to make sure our actions are such that risk to the university is minimized. This risk is minimized by documenting what you are doing so that later a more evil motive cannot be attributed to your action(s).
Points to Consider on Documentation
- Just do it. Juror attitude studies have shown that juries believe “if it isn't written down, it didn’t happen!”
- Just do it timely. If you are going to praise or reprimand it must be done in close proximity to the event that precipitated the praise or reprimand or the effect is diminished significantly. Acting in a timely manner is critical.
- The goal is to change behavior (the documentation is a byproduct of pursuing that goal). The documentation is essential from a legal perspective, but if you are successful in changing behavior and no further action is necessary there will be no legal perspective with which to deal.
- If you are going to have any potential for success in changing behavior you must successfully communicate to that employee: a) what he/she is doing wrong, i.e. the difference between expectations and actual performance; b) what he/she needs to do to do it right; and c) what will happen if he/she does not make the necessary corrections (this could be either a statement of potential outcomes related to the performance/behavior or it could be sanctions that may be taken, or both). Thus a document that covers the above (a–c) will be a good source to illustrate that whatever employment action was taken was taken for legitimate reasons.
- Do not put anyone on “Probation” or use the term probation. Probation, as used in written warnings, typically has a beginning and an end. That is not what you want. You want to express to the employee that the performance/behavior improvement must be “immediate and continued.”
- Always end by expressing confidence that the employee can change his/her behavior/performance and you are willing to help as long as he/she tries.
- Be sure that you initial or sign the document and if possible have the employee do so as well.
Employee or Independent Contractor
Samford University pays a large number of people as independent contractors every month. These people perform a wide variety of services for the university. It is important that we always ensure that the status of these persons as an independent contractor is accurate. How does a person acquire independent contractor status? It is not because we choose to designate them as such; it is not because they want to be designated as such. It is solely because they meet the definition of independent contractor as defined by the Internal Revenue Service. The IRS has an interest in this because independent contractors do not pay their taxes on a payroll deduction basis; they have to file and pay their taxes quarterly. Actual employees, on the other hand, pay taxes as they go on a payroll deduction basis. Therefore, the IRS does take an interest if they feel that people are being defined incorrectly as independent contractors.
Below is a review from the Internal Revenue Service's website of an independent contractor versus an employee.
“Whether someone who works for you is an employee or an independent contractor is an important question. The answer determines your liability to pay and withhold federal income tax, social security and Medicare taxes, and federal unemployment tax.
In general, someone who performs services for you is your employee if you can control what will be done and how it will be done.
It is critical that you, the employer, correctly determine whether the individuals providing services are employees or independent contractors. Generally, you must withhold income taxes, withhold and pay Social Security and Medicare taxes, and pay unemployment tax on wages paid to an employee. You do not generally have to withhold or pay any taxes on payments to independent contractors.
Caution: If you incorrectly classify an employee as an independent contractor, we (Samford University) can be held liable for employment taxes for that worker, plus a penalty.
Who is an independent contractor? A general rule is that you, the payer, have the right to control or direct only the result of the work done by an independent contractor, and not the means and methods of accomplishing the result.
Who is an employee? Under common-law rules, anyone who performs services for you is your employee if you can control what will be done and how it will be done. This is so even when you give the employee freedom of action. What matters is that you have the right to control the details of how the services are performed.
To determine whether an individual is an employee or independent contractor under the common law, the relationship of the worker and the business must be examined. All evidence of control and independence must be considered. In an employee-independent contractor determination, all information that provides evidence of the degree of control and degree of independence must be considered.
Facts that provide evidence of the degree of control and independence fall into three categories, behavioral control, financial control and the type of relationship of the parties.
Facts that show whether the business has a right to direct and control.
- Instructions—an employee is generally told:
- When, where and how to work
- What tools or equipment to use
- What workers to hire or to assist with the work
- Where to purchase supplies and services
- What work must be performed by a specified individual
- What order or sequence to follow
- Training—an employee may be trained to perform services in a particular manner.
Facts that show whether the business has a right to control the business aspects of the worker’s job include:
- The extent to which the worker has un-reimbursed expenses
- The extent of the worker’s investment
- The extent to which the worker makes services available to the relevant market
- How the business pays the worker
- The extent to which the worker can realize a profit or loss
Type of Relationship
Facts that show the type of relationship include:
- Written contracts describing the relationship the parties intended to create
- Whether the worker is provided with employee-type benefits
- The permanency of the relationship
- How integral the services are to the principal activity
For a worker who is considered our employee, we are responsible for:
- Withholding federal income tax
- Withholding and paying the employer social security and Medicare tax
- Paying federal unemployment tax (FUTA)
- Issuing Form W-2, Wage and Tax Statement annually
- Reporting wages on Form 941, employer’s quarterly federal tax return.
Job Description Guidelines
A job description is intended to be a summary of the primary activities and responsibilities typically performed in a given job. It is not a comprehensive list of all activities performed within a job. Job descriptions should describe the job as it currently exists, not as it will exist sometime in the future.
After reading the following guidelines, use the job description template at the forms library. It is necessary that we have consistency in format for all Samford University job descriptions.
A job description is intended to be a summary of the primary activities and responsibilities typically performed in a given job. It is not a comprehensive list of all activities performed within a job. Job descriptions should describe the job as it currently exists, not as it will exist sometime in the future.
The purpose of a job description is to:
- Document the primary responsibilities and requirements of each job.
- Ensure that employees have a clear understanding of their jobs.
- Provide a basis for job evaluation, salary surveying, market pricing and career opportunities.
- Provide a vehicle for posting internal jobs.
- Communicate expectations which may assist employees in improving performance.
Guidelines for Writing Job Descriptions
- Keep the sentence structure as simple as possible-omit superfluous words that do not contribute necessary information.
- Begin statements with action verbs such as: analyzes approves, authorizes, develops, evaluates, inputs, operates, organizes, performs, recommends, reviews and schedules.
- Chose verbs that relate to the appropriate role of the job. For a support role, it would be misleading to use “manages.” A verb such as “administers” or “initiates” would be more appropriate.
- Use examples, where appropriate, to add meaning.
- The writing style should be clear and concise—use non-technical language whenever possible.
- Avoid vague words which are subject to varying interpretation, i.e. “compiles monthly counts for reports and distributes report” versus “assists with preparing reports.”
- Focus on critical activities while disregarding minor or occasional duties that are not unique to a specific job.
- The preferred sentence structure is present tense telegraphic style (implied subject/verb/object/explanatory phrase)
- Consider all work performed over a 12-month period.
- The best job descriptions are written in a factual and impersonal style—the description is not meant to describe the characteristics of any given incumbent.
- The levels of education and experience should be stated as minimums and should be realistic in view of the duties and responsibilities. If requirements are inflated, they will serve to screen out people who are actually qualified.
Samford University values excellence. We are committed to creating and maintaining an environment that emphasizes the importance of relating work performance to our mission. This information applies to regular full time and part time staff. Excluded from this performance management and appraisal process are faculty and adjunct faculty.
An ongoing communication process that involves both the employee and supervisor in:
- Identifying and describing job functions and relating them to the mission and goals of the university and/or the academic or administrative unit.
- Developing realistic and appropriate performance expectations.
- Giving and receiving feedback about performance.
- Writing and communicating the results of the performance appraisal.
- Planning educational and developmental opportunities to sustain, improve or build on employee work performance.
Written statements describing what is expected of an employee on the job in terms of performance and behavior. At the least, employees should be advised of performance expectations when they are hired and every year at the performance appraisal. Refer to the section Performance Management/Merit Pay Program for instructions on how to write performance expectations.
Pay for Performance
A method of rewarding employees based on their accomplishments and annual performance appraisal. The theory is that there should be a correlation between the employee's performance appraisal and the value of their salary increase.
The foundation of an effective performance appraisal and management process is frequent and timely communication. It is expected that supervisors will inform employees of job requirements and performance expectations and the manner in which employees' performance will be evaluated. The success of this process depends on the willingness of supervisors to complete an objective, accurate and constructive performance appraisal and on the willingness of employees to respond favorably to constructive feedback and, when needed, to improve their performance.
The performance of employees is evaluated generally at the end of the introductory period and generally in each year thereafter.
Performance Appraisal Form
A written performance appraisal is based on the employee’s overall performance in relation to his/her job expectations. It takes into account the employee's work behaviors and other established performance expectations. The written performance appraisal is a legal document. It is also an official record of the employee's work performance, and may be considered in future employment decisions. In addition to the regular performance appraisal described above, supervisors may initiate at any time a written counseling or warning to document and advise an employee of performance deficiencies. Please refer to the section on Corrective Action and Documentation.
This form may be used when desired and is self explanatory. Under no circumstances should employees be asked to complete the performance appraisal form referenced above.
During the performance appraisal process, employees are provided an opportunity to review, discuss and comment on the actual performance appraisal document. The performance appraisal form is signed by the supervisor, the supervisor's supervisor and the employee. A copy is given to the employee and the original is sent to the official employee file maintained by human resources.
Disagreements arise occasionally over the written performance appraisal. In the event an employee disagrees with any part of the written appraisal, he/she may attach a supplemental, explanatory response. The response will become a part of the record. If the employee believes the performance appraisal is not factually accurate, he/she may request a review by the supervisor, the next level of management, and/or intervention by the director of human resources.
- The vice presidents are responsible for assuring that their direct reports implement the performance management and appraisal process in their areas for all eligible employees.
- The director of human resources is responsible for monitoring and assuring the uniform and consistent application of this process.
- Supervisors and managers are responsible for coaching, counseling and providing timely and factual feedback to their employees and codifying the same in a written performance appraisal.
Performance Management/Merit Pay Program
Staff Employment Procedure
Samford University is an equal employment opportunity employer that actively seeks to attract, hire, and retain a high caliber diverse workforce comprised of employees whose talents and experiences best equip the University to accomplish its mission.
As such, the University is committed to providing a workplace that offers equal employment opportunity for all persons. Samford University will not discriminate against or harass any employee or applicant for employment because of race, color, ancestry, national origin, sex, disability, or age. With respect to religion and creed, as permitted by law, the university reserves the right to exercise discretion in employment decisions to employ persons whom the University believes share and will further the values and mission of the University.
These employment procedure guidelines are provided to assist hiring officials, search committees, and support staff, as they plan, initiate, and/or participate in the University's search and selection process. The goal is to hire the most qualified applicant for every job while minimizing risk to the University.
Much of this process involves anticipating next moves and taking actions in advance to process paperwork and meet staffing levels in your area. Please be aware of the process and plan accordingly.
The following bullet-point summary of the initial hiring steps applies whether you are requesting a replacement or a new position:
- A staff employment requisition is completed by the hiring manager and routed through the required signatures.
- After signatures are obtained, a job review is completed by the director of HR. Each job review must be approved by the president. Do not extend an offer of employment until the president approves this job review.
- The job is posted by human resources. It is the practice of the university to post jobs on the HR website for at least three days.
Staff Employment Requisition
Any request to hire, whether for a new position or for a replacement, must be made by completing a staff employment requisition (all forms are located at the human resources form library) and obtaining all necessary signatures. The requisition form is routed in the order of the signatures required in the signature section of the form.
The requisition must contain minimum requirements for the position; education, prior employment experience; and any required licensures and/or certifications. In addition, if any skills assessments are to be used, this must be indicated on the requisition (see “screening”). A job description must accompany the requisition (a template can be obtained at the forms library).
In order to curb the proliferation of job titles, there are standard job titles that must be used or approval must be obtained to add a new job title to the position control system (as in the case of a new position). Therefore, please be aware that there are some limits on job titles and efforts are made to standardize titles.
If the requisition is for a replacement, be certain that the termination portion of the change of status form has been completed terminating the employment of the person the requisition is replacing.
Every regular part-time and full-time position, either replacement or new, must undergo a job review. This review is conducted by the director of human resources and must then be reviewed and approved by the president. A job cannot be posted nor an offer extended until this review is completed and approved.
Once the requisition is approved, the position will be posted. It is the practice of the University that positions will be posted for a minimum of three business days on the Samford University website as well in the human resources department. Jobs may also be advertised in local and/or national publications. Ads must be placed/approved by human resources.
Job offers must not be made either officially or unofficially until after the job is posted.
In order to apply for a specific open position, interested persons may email, mail or fax resumes or they may come to human resources and complete an application for employment.
Résumés that are not submitted in response to a solicitation (posting) for a specific, open position will not be considered or retained.
To be considered as an applicant, individuals submitting an application for employment or resume as a result of an advertisement or job posting must identify a current open position. If an individual submits a résumé or Application for Employment which does not identify a current open position, the individual will not be considered to be an applicant.
Applicants wishing to be considered for employment with Samford University must apply through the Human Resources Department.
Keeping thorough and accurate records is a very important part of the employment process.
Records that department interviewers must maintain are:
- Applicant referral information form on each applicant; complete and return to HR after the selection is made.
- Interview notes on each interview (these may be kept in the department or filed with HR). Do not make notes on the application or resume.
- Records of any testing results should be sent/returned to HR.
The human resources employment coordinator is charged with maintaining a record of all persons who submit a resume or application for each specific open position and all information submitted in connection with that application or resume.
Once the job has been posted, the human resources employment coordinator will screen all submitted resumes and applications to determine the most qualified applicants who should be interviewed for the position. The screening may take place by:
- Comparing the minimum requirements of the job to the qualifications of those submitting applications/résumés.
- Telephone interviews of qualified applicants for determination of compatibility with Samford University’s mission, salary ranges, or other job related factors.
Testing or assessment of knowledge and skills will be conducted by human resources on an as needed basis. If assessment of a candidate's skills on Excel, PowerPoint, Word or any other office computer application is desired, the department manager/interviewer must collaborate with the employment coordinator so that the appropriate assessment can be developed.
Some department interviewers prefer to interview and then have applicants tested and some prefer to have applicants tested and then interviewed. Either is acceptable as long as all applicants for the same job are handled consistently.
Human resources will notify departmental interviewers of the testing results.
After screening and testing, qualified applicants will be referred by human resources to the department interviewer. The department interviewer will select the most qualified applicants to be interviewed from these referrals.
The employment coordinator will screen applicants based on the minimum qualifications written by the hiring department.
Samford conducts a background screen on every final candidate for employment in all staff and faculty jobs. This screen must be successfully completed in order to be employed. The screen includes but is not limited to criminal background, driving record, and social security number verification. Credit/financial history and drug testing may also be required by some departments.
A background search release form will be sent for the final candidate before the background screening can be conducted.
After all applicants have been interviewed by the departmental interviewer, that person should confer with the employment coordinator to determine if a selection can be made. If so, any required background checks (such as verification of education, prior employment, licensures, and certifications, as applicable, and reference checks) will be initiated.
After the most qualified applicant is selected and all background checks are satisfactorily completed, an offer may be extended to the applicant (see Offer Letter).
Applicants who are not selected should be informed of their status in a timely manner. See Announcement Letter for language that can be used in a letter or email to interviewed applicants that are not selected.
Employment decisions subject the University to additional costs and can create significant liability. That is why we have guidelines to help us reduce our exposure to such liability.
Use the following checklist before, during and after the hiring process.
- Termination form for an exiting employee has been completed
- Minimum requirements for the job have been written
- Requisition with obtained appropriate signatures has been submitted
- A job review has been conducted and approved by the president
- A determination has been made if any testing is necessary
- Information on all referred applicants has been reviewed
- All qualified internal applicants have been interviewed
- An employment application has been completed by the candidate
- A decision to hire based on the most qualified applicant and without regard to race, gender, age or any other protected factor will be made
- A background screening release form has been electronically signed by the prospected new employee and results have been returned
- An offer letter and announcement letters are completed as appropriate
- The staff new hire form has been completed by hiring department and sent through the approval route
All newly hired employees are subject to E-verify and I-9 verification. As required by federal law, the I-9 must be signed no later than the first day of work and E-verify within three days of work. Once a hiring decision has been made the final step is to complete paperwork.
Full-time and part-time employees must attend an orientation before (if possible) or immediately after hire date.
As the date, time, and place for orientation may vary depending on the volume of new hires, please contact human resources (726-2390) for verification.
What is the difference between exempt and non-exempt?
Exempt employees are exempt from overtime, paid by the job not by the hour. Non-exempt employees are not exempt from overtime; therefore, they are paid by the hour and are eligible for overtime.
How is a person determined exempt?
The duties of the job are compared to one of four tests prescribed by the Fair Labor Standards Act. The job duties must meet the standards set by one of these tests for the job to be considered exempt.
What records must be kept on non-exempt employees?
There are 12 items that payroll must keep in the pay records on non-exempt employees but the one item generated by the employee is the daily starting and stopping times.
An hourly (non-exempt) employee has agreed to work on a special project or event. How can I pay this employee?
Because hourly employees are subject to Department of Labor regulations, their exact hours must be documented for payment. These hours must be considered in combination with regular hours worked in computing overtime and the overtime rate of pay. You may not pay an hourly employee a “flat rate” for working on a project even though both parties may be agreeable to this arrangement; it is a violation of federal law. Please contact the payroll office for assistance in specific cases prior to engaging employees to work on special projects or events.
How precise should the starting and stopping time records be for non-exempt employees?
The wage hour regulations state that the records must reflect the employee's actual starting and stopping times, i.e., the times an employee begins work, starts and stops a lunch hour, and leaves for the day.
What records must be kept on exempt employees?
None that are generated by the employee. For the purpose of record keeping for Samford benefits, exempt employees must report the use of paid leave.
Must non-exempt employees be paid for training or meetings that are held after hours?
Yes, if the meeting or training is required for the employee, or if the employee's non-attendance at the meeting or training would have an impact on his/her job. Only if the meeting or training is 100% voluntary where the employee’s non-attendance would have no impact on his/her job would pay for the time not be required.
Are we required by the Fair Labor Standards Act to give employees breaks or meal breaks?
There are no provisions in the Fair Labor Standards Act (FLSA) for breaks of any kind nor are their any Alabama state laws that provide breaks. (Obviously we do want employees to be rested and refreshed for work so we do allow meal breaks, etc.) The FLSA covers only the payment of breaks so that breaks of less than 20 minutes are on the clock and breaks of 20 minutes or longer can be off the clock (non-compensable).
If a non-exempt employee eats at his/her work station during a meal break, is that compensable or non-compensable time?
We would have to pay the employee for that time. Breaks that are supposed to be off of the clock must be away from the work station so that the employee will not be interrupted or perform any work (such as answering the phone).
Who is paid overtime?
Non-exempt (hourly) employees who work in excess of 40 hours in a seven-day period (Sunday through Saturday) are paid time and one-half times their hourly rate for the hours worked in excess of 40.
An employee, of his/her own free will, comes in early, takes a short lunch hour, stays late, and as a result, incurs overtime. Does the overtime have to be paid?
Yes, if you allow an employee to work he/she must be paid. However, managers can and must control the workplace and the hours worked by employees.
What if the employee comes in because he/she wants to and does no work-just to avoid traffic, read the paper, drink coffee, etc. Is that compensable time that could lead to overtime?
No. It is not compensable time as long as the employee is not preparing the workplace for work or performing any work.
If an employee works over 40 hours in a seven-day period can he/she be given comp time and a half in lieu of time and a half dollars?
No, there is no such thing as comp time and a half (except in the public sector and we are not in the public sector).
When is the use of comp time legal?
Only when the comp time is used within the seven-day period in which it is earned. For example, an employee works eight hours a day Monday through Wednesday and 10 hours on Thursday. Comp time (hour for hour) of two hours could then be used on Friday to avoid time and a half pay. If the employee had worked eight hours Monday through Thursday and 10 hours on Friday, the comp time could not be used and overtime must be paid. The comp time cannot be carried over from one seven-day period to the next.
What about comp time for exempt (salaried) employees?
There is no such thing as comp time for exempt employees. Exempt employees are not paid by the hour and any accounting of their work by the hour could violate their exemption.
Do all hours count toward the computation of overtime?
Only actual hours worked count toward overtime. Any kind of paid leave does not.
Can requiring an employee to work overtime be made mandatory?
Can employees volunteer to work off the clock?
The forms below should assist those in management positions at Samford University with a variety of employment issues.
- Student Personnel Request Form
- Student Employment Form
- Student Employee of the Year Nomination Form
- Change of Status Form
- Student Employment Extension Form
- Student Pay Request Form