One great way to understand the importance of a casually written e-mail is to think about how the jury will see it, says attorney Allison West. “In court, it will be blown up to the size of New Jersey,” she says.
Yesterday’s Advisor presented West’s tips for bulletproof documentation; today we’ll look at more of her key do’s and don’ts. West is principal of Employment Practices Specialists in Pacifica, California. West offered her tips during a recent BLR® audio conference.
Here are more of West’s documentation do’s and don’ts:
Do include a full date. West notes that if there is no date at all, documentation is very suspect. Especially under cross-examination, witnesses will find it very hard to state a date with accuracy.
West offered the case of a worker who was terminated during pregnancy leave. The only document to support the company’s contention that her termination was part of a RIF was one sheet of lined, yellow paper.
The page had three different entries in different colored inks, including one that had the employee’s initials. And it had a day and date, but no year.
“I remember very clearly,” the manager told the jury, but he wasn’t able to be convincing.
Always include the full date, and include full names at least once, says West. After that initials or first names are OK.
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Do create contemporaneous documents. Do your documentation at or around the time something happens. If you wait 3 weeks, it’s a little suspect, West says.
Don’t ever backdate documents. If you are documenting late, fine, but don’t backdate. That will be found out, and you can be picked on and chopped up during cross-examination.
Do get a signature. When possible, obtain the employee’s signature to verify that you had the discussion. You’d like a way to show that you have shown the document to the person, West says.
Don’t make legal conclusions. For example, don’t use the word “harassment.” Harassment is a legal conclusion. Say, for example, someone makes a complaint: “Bob stands too close, says suggestive things.” Don’t say, “I’m sorry you’re being harassed.” The person will think, “Oh, I’m being harassed. I just thought I felt uncomfortable.” And the jury’s going to think the same thing—even the manager thought it was harassment.
The easiest thing to do, West says, is to mirror back employees’ words to them. “I’m sorry it’s making you uncomfortable.”
Do avoid loaded words. Unless you really have good examples, avoid the following words, says West:
- Weakness
- Shortcomings
- Areas we want you to work on
- Inadequacy
- Failure
- Haven’t met performance goals
- Insubordinate
When using these words, be aware that they are very loaded. You must back them up with details, West says.
Don’t use absolute expressions unless completely accurate. “You are always late.” “Actually, I was on time today,” the employee will say. This completely takes the wind out of your sails.
“You never volunteer to stay late.” “Yes, I did on March 2.”
“Always,” “Every time,” “Invariably,” and similar words cast a negative tone, are not accurate, and suggest bias. Instead, says West, use “often,” “typically,” etc.
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Don’t record things that you are not communicating to the employee. “I’m keeping a list and when it’s long enough, I’ll talk to the employee.” Keeping stuff hidden away suggests unfairness, says West.
Of course, there’s a big assumption here—that the actions that managers are documenting are the correct actions. That’s where your policies come in. Your managers and supervisors turn to them for guidance. Your policies are the backbone of your HR program.
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