So you think you’re safe because you document every employment action? Read this lawsuit-losing list of common errors and see if you’re “guilty” of any of them.
You’ve been sued by a former employee, and now you’re facing the music in court. You’re not worried, though. At your side is a briefcase of documentation showing why you fired the fellow, and you’re sure that once the judge sees it, he’ll be singing your tune.
Shock of shocks! Your documentation is found wanting, and now you are … wanting an extra $20,000 to pay the judgment against you, that is.
What went wrong? Recently, our sister newsletter, HR Manager’s Legal Reporter, as part of its “Lawsuit Avoidance 101” series, published a list of items that sink HR documentation. Here’s an abstract of HRMLR’s “catalog of can’t dos”:
1. Unsigned or undated documents. Dumb as it sounds, this is the number one failure in documentation, says HRMLR. Sign and date everything! And if it’s a document drawn up with an employee, have the employee do the same.
2. Illegibility. You didn’t go to med school, so leave the scrawl to the doctors. In court, neatness counts!
3. Late Documentation. Judges and juries look askance, shall we say, at disciplinary or other reports written weeks or months after the incident they describe.
4. Inaccuracy. That document looks perfect, except it’s got the wrong facts. Even one error of fact makes the entire document suspect.
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5. Unsupported Conclusions. Don’t write “Worker X was drunk” unless you’ve also documented the reasons you think so, e.g. “liquor on breath, unsteady gait, slurred speech.” Including the statements of objective witnesses will buttress your conclusion even more.
6. Waffling. If Mike isn’t making his 200 widgets per hour, don’t just write “Mike’s work performance can be improved.” The judge will ask, “improved from what to what?” Tell it like it is, with specifics.
7. Don’t Make Excuses. Statements such as “you failed to do X but I know we’ve all been pushing hard lately,” may win you a nice guy award from your workers, but it won’t win your case.
8. Don’t Lie … Even to Be Nice! Saying someone was let go due to a restructuring rather than for cause, if there was cause, can backfire big time in a wrongful termination suit.
9. Inconsistency in Documentation. If you’ve written up Sally for an infraction, you’d better have written up everyone who did it. Otherwise you’re wide open to a charge of discrimination.
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10. Personal Notes. Those little scribbles you make to yourself and never show the worker may end up shown to a judge instead. Keep the document official, which leads us to…
11. The “60 Minutes” Test. Never write anything that you wouldn’t want read aloud on investigative TV or written on the front page of The Wall Street Journal.
12. Don’t Overfocus. Writing up every tiny infraction makes you seem petty and takes attention away from the big reason for disciplinary action.
13. Don’t Underfocus. Same problem, at the other extreme. The manager who writes up only the job-ending incident and leaves off the major happenings that led up to it makes the termination seem emotionally driven and spontaneous. That’s not how you want to appear in court.
Bottom line: Keep those documents concise, readable, and specific … and please don’t forget to sign and date them!
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I enjoyed your article “The 13 Deadly Sins of HR Documentation”, however, I would have added one more sin. As with most HR professionals I receive Employee Annual Evaluations that state the employee either “exceeds expectations” or at the very least “meets expectations” and then the supervisor turns around and fires the employee for poor work performance later. When I ask my supervisors why they wrote such a nice annual evaluation for an employee who was obviously not performing, they say either they didn’t want to be mean or they didn’t want to cost the employee money regarding a merit increase. I then ask them why they have a problem giving an employee a 2% raise instead of a 4% raise, but have no problem taking away all of their money by firing the employee?
Just a thought.
Donna Nemeth