Monday, December 1, 2014

Documentation Is Good – Good Documentation is Better

Employees end up being terminated in one of two ways. Either they do something so terrible that they are summarily dismissed. More commonly, an employee just regularly underperforms or engages in a series of lower level misconduct until one day it’s the last straw. The employee is late one more time, or makes the same mistake again, and the employer becomes fed up and decides it’s time to end the relationship.

We always harp about documenting employee misconduct or poor performance. When the employer has that last straw moment with consistently poor performance or misconduct, documentation of past performance or conduct problems is important, but the strength of the documentation is equally if not more important. So, what exactly is good documentation that supports a defense to any later claims?

1. Objectively Articulate the Employee’s Problem: 
It’s just not enough to say “Sarah doesn’t pay attention to detail.” It’s better to say “Sarah has again failed to catch errors in her document. The November newsletter had last year’s date for the community holiday party. We spoke about the requirement of error free documents with her on April 15, 2014; May 31, 2014, July 8, 2014, August 10, 2014 and October 14, 2014”

2. Refer to policy if appropriate;
It’s not enough to say that “Peter engaged in sexual harassment by telling vulgar jokes” It’s better to say “Mary S. complained that Peter’s off color jokes offended her. After an investigation that included speaking with John, Nancy, Matt and Kathy, we concluded that Peter violated the company’s sexual harassment policy when he repeatedly told jokes of a sexual nature after Mary told him that they made her uncomfortable.” The important distinction here is that Peter probably did not commit sexual harassment as defined by law, and the employer should not make that conclusion. Peter violated the employer’s sexual harassment policy. It should be reported as such.

3. Avoid Subjective Opinions.
Documentation should not include speculation about what might be at the root of the employee’s problems. Documentation should never contain remarks such as “Sarah is going through a difficult divorce and this is probably why she is sending out documents with errors in them” unless Sarah shared that with her supervisor during a performance discussion. If that happens, it’s better to say “when we spoke with Sarah about sending out documents with errors, she shared with us that she has been distracted as a result of her difficult divorce. We referred her to EAP” If Sarah had not mentioned her personal problems, no mention should be made in the write up.

4. List All Witnesses to the Event.
Documentation should identify everyone that has first hand knowledge or witnessed the event in question. It’s not enough to say “Sarah was insubordinate.” It’s better to say “Sarah was insubordinate to her supervisor on November 25, 2014 when she rudely refused to complete the water billing before she went to lunch as directed by her supervisor. Witnessing the event were Sam, Karen and Pat. All were interviewed and submitted the attached statements.”

5. Include the Employee in the Write Up.
Silly as it sounds, many employers document misconduct or performance problems without including the employee in the process. They simply note the problem and file the memo away without ever discussing it with the employee. The purpose of documentation is to create a written account of the corrective action taken against the employee. This process necessarily includes the employee and an employer cannot justify progressive discipline if the employee was not given notice of the infractions with an opportunity to improve.

Better documentation means a better defense if that employee later claims that the employer took unlawful employment action. A good plaintiff’s attorney will pick apart documentation to minimize its effect. Be prepared. Training your supervisors on ways to better document employee misconduct and performance deficiencies is well worth the time and resources.