Human resources professionals know well the mantra: Document, document, document. But just writing things down isn’t enough. HR needs to recognize and avoid common documentation mistakes.
Susan G. Fentin, a partner with the Skoler, Abbott & Presser, P.C. law firm in Springfield, Massachusetts, recently outlined common mistakes as part of a Business & Legal Resources webinar titled Defensible Employment Documentation: How to Build a Wall and Minimize Legal Risks.
Although the purpose of documentation is to minimize risks, it can come back to haunt if it’s done wrong. And if it’s not done at all, the employer is almost certain to be seen as the “big, bad employer” and a litigating employee is likely to be seen as the “poor, innocent employee,” Fentin says.
Although HR professionals usually understand the importance of carefully documenting various aspects of the employment relationship—especially hiring, training, misconduct, performance, investigations, complaints, terminations, etc.—supervisors don’t always keep documentation top of mind. And that’s why Fentin says HR needs to communicate to supervisors that it’s not about whether you did something for the right reason. Instead it’s about whether you can prove that you did. And that’s done through documentation.
Consider the audience
One mistake occurs when a documenter doesn’t think about who might eventually read the documentation. So who should an employer expect the audience to be? Fentin says that in a dispute, all types of documentation end up before an array of people—the employee, the employee’s lawyer, administrative agencies such as the Equal Employment Opportunity Commission, judges, and juries.
What do these audiences expect? Professional, clear, fair, rational, and timely documentation, Fentin says. Every piece of documentation should be something you would be willing to read on the witness stand in front of a jury, she says. Make sure to use complete sentences, correct grammar, and appropriate punctuation. It needs to be complete, legible, and filed where it can be found.
Documentation also needs to be easily understood and honest, Fentin says. The documentation file is not the place for exaggeration. It also should communicate the business-based reason for an employer’s decision. Timeliness is important, too, Fentin says, because delay undermines the legitimate reason for an action, and delayed documentation looks suspicious.
The list of common mistakes is long, but among them are:
- Using labels without behavioral examples. Fentin advises against writing that someone has a “bad attitude.” A better way to document the problem is by saying something specific about what the employee does that shows a bad attitude.
- Using words that can be interpreted as “code” for bias or retaliation. For example, Fentin says, “lack of commitment” may be code for “woman with childcare responsibilities,” “difficult personality” may be code for someone with a disability such as bipolar disorder or depression, and “not a team player” may mean that the person doesn’t share the same characteristics as the others.
- Using absolutes such as always and never. Documentation using absolute terms is easy to challenge and hard to prove, Fentin says, and suggests that an employee is targeted because of being part of a protected class or participating in protected conduct. “‘Always’ and ‘never’ are dangerous terms to use,” she says.
- Using a vague writing style. Documentation that says “It would appear that …” or “You don’t seem to …” is too vague. Fentin says to cite examples instead: “This month you made three serious calculation errors that threw off our monthly budget.”
- Using too much detail. Just as being vague can cause problems, being too detailed can also bring on trouble, Fentin says. Documentation that’s overly detailed is hard to follow and can look like a supervisor is picking on an employee.
- Using legal language. Fentin also reminds employers that using legal terms can be seen as an admission of unlawful actions. For example, documentation shouldn’t say someone engaged in “sexual harassment” or caused a “hostile work environment.” Whether someone’s behavior actually constitutes sexual harassment or creation of a hostile work environment may not have been established. Instead, say the employee engaged in conduct below company standards.