March 29, 2019 | Category: Discipline, HR, Termination

Document. Document. Document.

When faced with a claim or lawsuit, documentation can make or break an employer’s defense.

Often, no documentation is the issue and that can be fatal. No documentation makes it appear that the employer did not care enough to make a note of what was going on – or worse, that the employer was purposely avoiding leaving a paper trail.

But even when there is documentation, there are plenty of things that can undermine an employer’s position.

No Documentation

If it’s not written down – it didn’t happen. When you have no documentation you are relying on memory of what happened or what was said. That’s a dangerous game to play when you have hundreds of employees and just as many discussions to remember. If you document, and make it a practice to document, you are going to be better off should there ever be a claim or a decision is called into question.

“I’ll write it down later.” It is important to ensure that discussions are memorialized and issues are documented when they arise. Why? You may forget to “write it down later” or you may forget a key piece of the discussion, which can come back to bite you later. Additionally, if you only start documenting a problem after you receive a complaint or after it becomes a big enough problem to consider termination, it looks suspiciously like you are creating a paper trail after the fact.

Document. Document. Document.

Vague Documentation

Be specific. If you can’t articulate what the issue is or what the expectations are, how do you expect someone else to know what they are or understand what is going on? You can’t.

Being vague or ambiguous doesn’t paint a clear picture of what happened. This doesn’t bode well when you are trying to justify – like during an unemployment hearing – that the employee knew what the expectations were when the documentation doesn’t spell it out.

If an employee is being written up for being insubordinate, explain what they did (or didn’t do) that was insubordinate (i.e. they ignored a directive). If they “didn’t meet expectations,” explain in what ways (i.e. they didn’t produce 100 widgets per day or they failed to meet a March 1 filing deadline).

Exaggerations or Absolute Expressions

“Jim is always late.” “Brittany is never at her desk.” Really? Likely, Jim is on time for his shift most days, but not as often as the company would prefer. Brittany is probably at her desk most of the day, but not any of the times her manager decided to stop by.

Using absolute expressions, when they aren’t true, or exaggerating the issue, undermines credibility. Don’t let your documentation call into question your credibility. No one should ever question whether what you say happened, actually happened based on the language used.

Specific dates and times are ideal. “Jim was 15 minutes late on 3/19, 3/21, 3/25, and 3/26,” states the attendance issue without exaggerating it. Even using words like “frequently” or “often” are better than absolutes like always and never.

Unclear Expectations

It seems like common sense that when a manager tells an employee to “show up on time,” the employee knows what that means. But, what is “on time” for the manager? Is grabbing some coffee in the company break room before you sit down to begin your workday at 8:05am considered on time? Or does the manager expect you to be at your desk, caffeinated, and ready to work the moment the clock strikes 8:00am? It’s a little unclear.

It seems like a tedious distinction, but it can save a lot of heartburn later if you are very clear about what the expectations are. Documenting exactly what an employee is expected to do (or not do) and the consequences for failing to do so will prevent any confusion on the part of the employee and result in less clarification later should there be a claim.

Language That Raises Red Flags

“Amber is not a good fit for this position.” While it may be true, it raises questions about why Amber isn’t a good fit. Is it because she cannot perform to the level expected for that position (i.e. producing enough widgets) or is it because of some protected category: age, sex, race, disability, etc.?

To prevent raising any red flags, documentation should address the specific conduct that has lead to the counseling, written warning, or termination. There is a reason that the manager is sitting down to talk to this employee. What is it?

Managers sometimes want to temper what they say to the employee or document about the employee’s work performance by using these types of phrases. It doesn’t help the employee to know what they are doing wrong or how to improve it and it leaves too many “what ifs” on the table.

Email is Documentation Too

What is said (written) in email is no different than what is written is a performance evaluation or on a counseling form – all of these things can be used as evidence to support (or undermine) your position. Employers should use just as much care in what they email to employees as they do in what they put on a form in the employee’s personnel file.

Regulatory agencies who review complaints alleging discrimination, wage and hour violations, safety issues, etc. will want to see all communications you had with the employee (or employees), not just what you have memorialized in the personnel file.

Documentation is important. Some documentation is better than no documentation. Clear and concise documentation is best. Don’t create issues for yourself by failing to document a situation or by documenting it poorly. Documentation is your best defense when an employee makes an allegation.