Of course, that does not mean the concern about commitment is always without legitimate basis. What if the employee never volunteers, must be persuaded to accept assignments and complains incessantly about how things were better before the bar was raised? Then say that.
Focusing on the employee’s intent (as opposed to results). Focus on results, and stay away from impugning an employee’s intent. Avoid statements like “You didn’t try,” “You don’t care” and “You weren’t applying yourself.” Intent is largely irrelevant; you cannot prove it, and it may be taken as a personal attack. Employees who feel attacked attack back.
Focusing on the perceived cause of a performance problem as opposed to the problem itself. Don’t state or suggest that you believe an employee has a physical or mental condition or that performance deficiencies relate to reasons for a prior leave. “I am concerned that your performance has declined since your second child” may buy college tuition for both children. Similarly, “You seem depressed” may help lift any possible depression when the employee realizes that you have just given him or her a viable perceived disability.
Using absolutes that are not credible. No one is perfect or totally flawed. Your comments should reflect balance, not extremes. Remember, absolutes (always and never) are absolutely assailable and almost never defensible. If the employee can provide one example contrary to the stated absolute, you may be portrayed as a liar trying to target the employee because of his or her protected status, activity or leave.
Hedging so much that the employer seems uncertain of the basis for its own decision. “It would appear” or “It would seem likely” will be heard as “I don’t know.” Recast the sentence: “You don’t seem to understand the new computer software” becomes “You have made three major mistakes with the new computer software that have. …”
Including too much detail. Sometimes supervisors nickel-and-dime the employee with details on everything he or she has ever done wrong. This is overkill and looks like a setup. Provide a general statement, and then make it clear that you are including only some examples of the deficiency so that you can later raise other examples: “There have been a number of interactions with customers that have been less than acceptable. The following are three examples.”
Using technical rather than plain language. With knowledge workers, sometimes the deficiencies are of a technical nature. You need to express the technical deficiency in plain language. Remember, you are writing not just for the employee but also potentially for a court, commission or jury.
Failing to make clear the consequences of lack of improvement. It is very important that employers be specific here. If it is a final warning, say that and make clear that if there is not adequate improvement, the employee will be subject to immediate discharge without further warning. I prefer “will be subject to” rather than “will result in” so that you convey a strong message but have some wiggle room. If it is not a final warning, then the consequences usually are “more severe discipline up to and including immediate discharge.”
Using labels that may create liability. Sometimes employees who engage in offensive behavior are fired for sexual harassment. Then the “victim” sues and tries to use the label as an admission by the employer. Meanwhile, the terminated employee also sues for defamation because the conduct, even if it is as alleged, is not severe or pervasive enough to be unlawful harassment. There is a big difference between “unlawful harassment” and “unacceptable conduct inconsistent with our harassment policy.” Avoid the legal label.
Another example: You are a professional services provider, whether it is a health care system, a law firm or an engineering firm. You state that the employee’s performance is “substandard.”
Why not just concede malpractice? At a minimum, the documentation would support a breach of contract claim in terms of services provided. Again, there is a big difference between “substandard” and “below our high standards.” Use words that focus on your appropriately high expectations.