We live in a litigious society, says Attorney Susan Fentin, and employees who feel they haven’t been treated fairly will look around for a reason to file a lawsuit. People are bitter, they want to get back, and it’s not that hard to do.
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Unfortunately, says Fentin, when you get sued, it always appears to be the Big Bad Employer versus the Poor Innocent Employee. Documentation is often the key to defending yourself. But there are a lot of mistakes that can make your documentation less effective, says Fentin, who is a partner at Skoler, Abbott & Presser, P.C., in Springfield, Massachusetts. Her remarks came during a recent webcast sponsored by BLR® and HR Hero®.
Here are Fentin’s top 10 documentation mistakes:
1. Using labels without behavioral examples
Describing the individual, not the conduct, or using vague terms like “Bad attitude.” What did employee actually do or not do? asks Fentin.
- “Employee failed to accept responsibility for misconduct and attempted to blame others for the errors.”
- “Employee resisted management direction and is vocal with his colleagues concerning his negative attitude, affecting all members of the team.”
2. Using words that could be interpreted as “code” for bias or retaliation
- “Lack of commitment” (could be code for women with childcare responsibilities)
- “Difficult personality” (could it be because the employee is bipolar, depressed, or has a disability)
- “Doesn’t fit in” (is a member of a protected class)
- “Not a good fit for corporate culture” (is a member of a protected class)
- “Not a team player” (is a member of a protected class)
What are people in protected categories going to think when they see these terms?
3. Focusing on employee’s intent instead of results
- “You didn’t try.”
- “You don’t care.”
- “You weren’t applying yourself.”
Employees who feel attacked will attack back.
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4. Including comments about why the problem occurred rather than on what actually happened
Any reference to protected class or conduct is a road map for a charge of discrimination.
- “Performance was poor after return to work from birth of second child.”
- “Employee seemed depressed.” (and, therefore, not performing up to standards)
5. Using absolutes—always, never
These are easy to challenge and hard to prove. Even one example of behavior undermines your otherwise credible documentation. It may also suggest targeting because of protected class or conduct.
6. Using a vague writing style
Typical phrases that are too vague:
- “It would appear that …”
- “You don’t seem to ….”
- Passive voice: “Mistakes were made.” Rewrite the sentence in active voice and cite examples: “This month you made three serious calculation errors that threw off our monthly budget.”
- “Show up on time” (Too vague, what is on time, what is show up? (Our attendance policy states that your workday begins at 8:30 a.m. You are expected to be at your desk and ready to work.)
- “Turn in your reports on time.” (Per the attached e-mail, I requested that you turn this report in by 4:00 p.m. Friday. You failed to do so.)
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7. Including too much detail
This makes it hard to follow the narrative and can look like the supervisor is picking on the employee. It looks like “nickel and diming.”
Make a general statement followed by specific examples: “You have frequently failed to follow through on assignments. For example, …”
8. Being too technical
Remember the audiences! Use plain language that unsophisticated readers will understand.
9. Not making consequences clear
At the end of the documentation, the employee should understand exactly what will happen if behavior is repeated, For example, in a final written warning—“Failure to comply with these rules may result in further discipline, up to and including termination of employment.”
10. Using legal language
Don’t use legal labels, says Fentin; it turns out to be an admission.
- “Sexual harassment”
- “Hostile work environment”
- “Discrimination”
Instead, talk about unacceptable conduct, conduct below company’s standards for treatment of colleagues, etc.
In tomorrow’s Advisor, the five things fact finders expect from documentation, plus an introduction to the free webcast courtesy of Navex Global, Benchmarking Your Hotline in 2015: How Does Your Data Measure Up?