Most likely, you have heard employment attorneys speak about the importance of documenting employee performance, behavior and discipline. Because such documentation can be key evidence when defending against a claim or litigation brought by a current or former employee, employers should be vigilant when training on effective documentation. Here are six best practices to consider:
Best Practice No. 1: Consider WHO will be reading the documentation
The potential audience of documentation should be considered when framing the scope of and the manner in which the documentation is prepared. Documentation may be read internally within the company, by an administrative (state or federal) agency investigator in response to an employee claim or agency audit, by a current/former employee’s attorney to draft a demand letter or by a judge and jury in litigation. In addition, be sure to include legal counsel on any communications addressing legal issues or the advice or instruction of counsel to maintain the attorney-client privilege of such matters.
Best Practice No. 2: Consider WHAT events to document
There are a number of opportunities where creating effective documentation can later serve to protect the company if a conflict arises: (1) counseling, discipline and termination of employment; (2) discrimination and harassment complaints; (3) promotions and demotions; (4) events that could lead to adverse employment actions (e.g., attendance, co-worker altercations, customer complaints, insubordination or layoff/RIFs); (5) the interactive process for ADA accommodation requests; (6) EEO or harassment training provided to employees; and (7) other situations - use business judgment and common sense.
Best Practice No. 3: Consider WHEN to document (and when to destroy)
Employment-related documentation should be created contemporaneously to the event (at or very near the time the event occurs). Documentation can also be in the form of a supervisor’s log that may involve more frequent, brief entries. Any follow-up discussions on issues previously documented should also be memorialized. For the destruction of documentation, it is important to have a well-organized, well-publicized (to managers and HR) document retention policy and timeline, which addresses exceptions for the receipt of a claim, litigation, a government investigation or audit or the instruction of legal counsel.
Best Practice No. 4: Consider WHERE to maintain the documentation
Employment documentation should be maintained in a secured location. In most cases, the documentation should be stored in the employee’s personnel file (or a separate medical file, if related to medical issues). If supervisors maintain files separate from central personnel records, care should be given to document forwarding practices and procedures, to ensure that documentation is not lost when a supervisor or employee terminates employment.
Best Practice No. 5: Consider WHY you are preparing the documentation
It is more difficult to refute a fact if there is a contemporaneous writing to support it. Although preparing documentation may be a time-consuming process, there are a number of tangible benefits to consistent documentation processes. Today, there are an increasing number of discrimination charges being filed (that may lead to lawsuits) and audits conducted by agencies. Memory lapses and time lags can diminish the accuracy of information that may be needed later. Written documentation may bolster the credibility of testimony. Detailed documentation also can serve as evidence to counter allegations of pretext and inferences of discrimination, which may be instrumental in supporting the summary judgment of claims in litigation.
Best Practice No. 6: Consider HOW to prepare the documentation
If the employment documentation is handwritten, ensure it is legible. Typed or electronic documentation is preferred, because its text can be readily searched. Standardized forms generated using performance management software can reduce reliance on email and other more transitory forms of communication, and reduce the associated burdens of preservation and searching.
When preparing the documentation, give careful thought to the language used. Below is a suggested list of “dos” and “don’ts”:
DON’T use:
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Editorial comments / personal opinions (e.g., “Employee gave more whiny excuses about doctor’s appointments”)
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Unsupported conclusions / accusations (e.g., “Employee is a drunk”)
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Derogatory comments
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Generalities (e.g., “Employee has a bad attitude”)
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Legal terms / labels (e.g., “Employee engaged in sexual harassment”)
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Absolutes (e.g., “Employee always misses deadlines”)
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Proxy adjectives (e.g., “too emotional”)
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Hedge language (e.g., “Employee seems to be making mistakes”)
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Abbreviations
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Sarcasm
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Promissory language (e.g., placing Employee on “six months’ probation”)
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Speculation
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Excuses for the Employee (e.g., “We know Employee tried his best, but . . .”)
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Inaccurate statements, even if they are to be “nice” (e.g., providing “restructuring” as reason for discharge when it is really for cause)
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Confusing language, spelling and grammar errors
DO use:
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Date (including year)
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Specific facts (e.g., “Employee is disrespectful to her co-workers and said.…”)
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Accurate and honest statements
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Explanations regarding document’s purpose
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Direct quotes
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Witnesses / others involved
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Meeting attendees (names and titles)
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Reference to Company rules, policies, procedures for support
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Confirm Employee’s access to Company policies and procedures
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Drafter’s printed name, signature and title
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For disciplinary documents, previous counseling that may not have been documented
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For disciplinary documents, Employee’s signature (or reference refusal to sign) and any comments
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Be direct (e.g., include specific expectations of the Company and why the Employee said they are not meeting those expectations)
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Action plan / next steps (e.g., specific changes Employee needs to make, goals and how Employee is going to achieve those goals, consequences for failing to achieve goals)
Finally, when in doubt about taking adverse employment action, consider seeking the advice of counsel.
© Polsinelli PC, Polsinelli LLP in California