Employment lawyers aren’t allowed to just say “Document,” says attorney Allison West; they are required to say “Document, document, document.” There’s a good reason for this mantra—documentation is critical.
Documentation is what gives you credibility, West says. It’s how you show the world that you did what you say you did. It shows that you treated employees consistently. Finally, of course, it’s Exhibit A when you go to trial.
Tough Times Mean More Suits
You don’t need an attorney to tell you that we are in a pretty dire economic time, West says, but you should be aware that employees are much more likely to sue during downturns. So great documentation is even more important than ever.
West is principal of Employment Practices Specialists in Pacifica, California. She shared her tips during a recent BLR® audio conference.
BLR’s SmartPolicies supplies 350 HR policies, prewritten for you, and ready to customize or use as is. Examine it at no cost or risk. Learn more.
Being Nice Begets Ambiguous Documents
West often gets the call from the manager who says, “It’s time to fire Betty. I have been clear with her about the problems, so there will be no surprises.”
But when West checks the file, there is a surprise. In fact, from the file, Betty looks pretty good.
“Well, she’s sensitive, and I didn’t want to hurt her feelings,” the manager says. That was nice, West says, but the result is documentation that is ambiguous and unclear, and doesn’t put the employee on notice of the performance problems.
“Guess what, you have to start over,” West tells the manager.
Flip Side—Overly Strong Documentation
Then, says West, there is the other side of the coin—documentation that contains personal attacks or non-objective comments. That’s no good, either.
To move toward better documentation, start by thinking through who will be looking at your documents down the road, says West. It could be a fact finder, an investigator from the EEOC, or a representative of a state agency.
Or it could be a jury. And who sits on a jury? “Twelve pissed-off employees,” she says.
Those 12 people will be comparing your behavior to that of their own employer and to what they think is right. How will your actions measure up?
All the Time
Think about documentation all the time, urges West, and particularly when dealing with:
- Performance appraisals and pretermination counseling;
- Disciplining for policy violations;
- Employee complaints;
- Legal issues like medical leave, disability, harassment, and workers’ compensation;
- Wage and hour, and
- Coaching and counseling on work performance.
(By the way, says West, coaching and counseling are two different things. Coaching is trying to get someone to their peak performance; counseling is for employees who have performance or behavioral issues, or whom you are guiding through the discipline process.)
Basically, says West, document when you say something important, or when the discussion has relevance to the employment relationship or has a legal component.
Documentation Do’s and Don’ts
West shared her practical tips for better documentation.
Do maintain a professional tone. You may be dealing with an employee whom you have written up many times, and who has caused a lot of frustration, but in documentation you must stay professional, West says. Be sure to:
- Avoid any kind of bias.
- Look clean and fresh.
West tells of one client who had written about his employee’s performance issues on the back of a wrinkled envelope with a big coffee ring in the middle. The judge said, “Ms. West, is that a café mocha ring or a café latte ring on that envelope?”
“That was a little embarrassing,” she admitted.
Why write your own policies when we’ve already done it for you … at less than $1 each! Inspect BLR’s SmartPolicies at no cost or risk. Go here for details.
West’s solution? Always have a clean pad of paper on your desk ready to go. Then you won’t have to show the court envelopes or Post-its®.
Don’t include personal opinions, accusations, or judgments.
- I thought someone like you would be above this.
- I would have thought better of you.
Don’t use generalities, overstatements, and exaggerations.
- Nothing seems to get through to you.
- You’re always late; you don’t care about your job.
- It appears you don’t care.
These statements are too vague, says West.
In tomorrow’s Advisor, we’ll bring you more of West’s documentation do’s and don’ts, and an introduction to an extraordinary prewritten policy program.
Other Recent Articles on HR Policies & Procedures
Legal Dangers of Online Reference Checking, Video Résumés
Web 2.0 in the Workplace—Control or Ignore?
10 Tips for Managing Out-of-Control E-Mail
Do your E-mails Send the Right Message?