HR Management & Compliance

5 Things Fact Finders Expect from Your Documentation

Yesterday’s Advisor showcased Attorney Susan Fentin’s 10 most common mistakes in documentation. Today, she offers the five qualities that fact finders (including judges and juries) look for in documentation.

When you document, you’re not writing just for the moment, says Fentin. The following parties will eventually be looking at your documentation:

  • Employee
  • Opposing counsel
  • Administrative agencies—the EEOC or state deferral agency
  • Judge
  • Jury

Fentin, who is a partner at Skoler, Abbott & Presser, P.C., in Springfield, Massachusetts, offered her documentation tips during a recent webcast sponsored by BLR® and HR Hero®.

What Do These Audiences Expect?

These audiences expect five things of your documentation. Be certain to be:

  • Professional
  • Clear
  • Fair
  • Rational
  • Timely

Fentin takes a closer look at each quality.

Be professional

  • Complete sentences and good grammar
  • Appropriate punctuation
  • All the blanks filled in

Every piece of documentation should be something you would be willing to read on the witness stand, in front of a jury.
Also, of course, file it where you can find it, adds Fentin.

Be clear

  • Easily understood (the reader could be knowledgeable, but could be a jury member)
  • Brief and to the point
  • Containing facts
    • A rule that was broken
    • Employer’s expectations
    • How employee failed to meet those expectations
    • Prior counseling or discipline
    • Consequences
    • Future consequences if employee fails to make required improvement


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Be fair

Whether the law requires it or not, juries will look for fairness.

  • Honest—no speculation. If the supervisor tries to be other than honest, it will catch up with you.
  • Follows company policy and procedure. What rule, and why it is important.
  • No piling on —prior offenses should be included only if relevant and timely.
  • Disciplinary consequences should be appropriate to the misconduct.
  • Consistent discipline for similar offenses (Investigators will ask for examples of similar situations.)
  • Includes a space for employee comments. It feels fair. If the employee does not attribute the situation to his or her protected class at this time, that’s good for the defense if the person later does bring that into the picture. (If the person does bring up protected class, pursue it. Why do you feel that way?)
  • Detail steps necessary to achieve desired results and how supervisor will assist, if appropriate.
  • Set a reasonable time frame for corrections, if appropriate.

Be rational

Articulate the business-based reason for the decision. If necessary, let people see your reasoning. “Not a good team member” is not enough, says Fentin. Give concrete examples—does not respond to e-mail; displays a negative attitude in meetings; rolls eyes when I am giving instructions.

  • Observations are job‐related and use objective criteria. Your position is supported with:
    • Handbook language/policy and
    • Specific examples.

Be timely

A delay in documenting undermines the legitimate reason for action, says Fentin. Delayed documentation looks suspicious and is very problematic. Managers say, “I had a real good reason for doing this, but I didn’t write it down. Can I write it now?”

Yes, says Fentin, but how does it look, writing it right after the charge is filed? Documentation after a claim appears pretextual.

Your documentation is vital to compliance, but there are also other ways to boost ethical behavior at your company, such as anonymous ethics helplines. Recent benchmark data show that company reporting systems are rooting out noncompliance issues—for example, retaliation reports are up 125% since 2013!

If you have a hotline, how can you know if it’s really being effective? Fortunately, there’s timely help in the form of a new webcast from Navex Global—Benchmarking Your Hotline in 2015: How Does Your Data Measure Up? In just 60 minutes, you’ll learn everything you need to know about effective company reporting systems.

Register today for this free (thanks to sponsor Navex Global) interactive webcast.


A strong ethics hotline results in stronger compliance. Join us for a free interactive webcast, Benchmarking Your Hotline in 2015: How Does Your Data Measure Up? Earn 1 hour in HRCI Recertification Credit. Register Now


By participating in this interactive webcast, you’ll be able to use industry benchmarks to understand:

  • How effective your anonymous ethics helpline is
  • If you are getting the right numbers and types of reports
  • How to interpret findings and correlate them to actions for you compliance program
  • What types of data is meaningful and actionable for reports to executive leadership
  • And much more!

Register now for this webcast.

Wednesday, April 1, 2015
2:00 p.m. (Eastern)
1:00 p.m. (Central)
12:00 p.m. (Mountain)
11:00 a.m. (Pacific)

Approved for Recertification Credit

This program has been approved for 1 recertification credit hour toward recertification through the Human Resource Certification Institute (HRCI).

Join us on Wednesday, April 1, 2015, for the free, in-depth Benchmarking Your Hotline in 2015: How Does Your Data Measure Up? webcast.

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