In this recent case, notes scrawled on a napkin ended up getting a company dragged into court:

The company’s VP of Technology worked for the employer for 17 years with no problems — until a new president was brought in.

The VP disagreed with the president on several things, and received an uncharacteristically negative review from the president.

Faced with financial problems, the company brought in a management consultant to meet with the president and other decision-makers. One decision that came from that meeting: The VP of Technology was fired.

He was told it was because he wasn’t the type of leader the company wanted. But he thought it was because of his age (he was 58 at the time, and the company replaced him with a 45-year-old) and sued. He won. Why?

Evidence presented included notes the president wrote on a napkin while meeting with the consultant. The scribblings included a note that the company’s execs should be “young, energetic” “future people.”

After seeing that, the judge agreed age likely influenced the president’s decision.

Cite: Inman v. Klockner Pentaplast Of America, Inc.

Shortly after starting her job at an auto parts retailer, a female employee in Mesa, Arizona said she was subjected to sexual harassment over the course of a year by her store manager. The store manager allegedly forced the worker’s head down to his genitals, exposed himself to her and made crude sexual remarks toward her.

Allegedly, HR investigated these incidents, and even interviewed five witnesses. (Take note of the “allegedly.”)

The last of these incidents was fortunately caught on a security camera at the store, and the regional HR manager forced the store manager to resign.

The female employee filed suit with the EEOC. When the EEOC asked the company for the documentation of the investigation, the store had some bad news — they simply didn’t have records of the employee’s sexual harassment claim.

Okay, said the EEOC. How about the records of the employee interviews HR did with the five witnesses to the harassment? Sorry, said the company. We are unable to locate that document at this time.

And the videotape of the store manager sexually harassing the employee? You guessed it — lost as well.

With all the documentation missing, the jury wasn’t buying the company’s story — and hit it with a $65,000 verdict.

The lesson for managers here? No documentation is just as harmful as bad documentation. Stress to your managers the importance of not only keeping good documentation, but also keeping organized records — you never know when your company will need to produce the paperwork again.

If an employee has taken FMLA leave, that can make the situation even more complicated. Take this recent case as an example:

A sales rep had been highly regarded by his employer. Three out of his four most recent performance evaluations rated him as “exceeding expectations.”

That changed after he took a month of FMLA leave to be treated for alcoholism.

Two weeks after he came back, it was time for his next review. His boss noted that his sales had dropped and there had been problems with his communication skills. The review concluded the employee failed to meet expectations, and he was placed on a 30-day performance improvement plan.

When he failed to bring his numbers back up in time, he was fired — and he sued the company. He claimed he was a good employee and was unfairly terminated because he took FMLA leave.

The employer argued that despite his previous success, his performance started to slip, as his most recent review showed.

But the company lost the case.

The reason: The court wasn’t convinced he would’ve gotten a poor review if he hadn’t taken leave. As the judge noted, missing a month of work must have caused his sales to suffer. The company should have adjusted its standards to account for the time he was gone.

Managers need to be careful about how they evaluate employees who return from medical leave. Even if bias isn’t intentional, companies can still get in trouble when an adverse action is in any way tied to an employee’s use of FMLA.

Cite: Burris v. Novartis Animal Health U.S., Inc.

You’ve probably mentioned it to managers a hundred times: When there’s a problem with an employee, make sure we have good documentation to back up any discipline. Employment law attorney Penelope Phillips explains a few hints that will make documentation better than “good.”

Phillips says the clues lie in several court cases she’s seen and how the right words have meant the difference between a win for the manager and a big cash settlement for an employee with a complaint. She says solid documentation relies on three pieces that every manager should understand. Here’s how they’re broken down:

1. Timing. Even good documentation can hurt your cause if too much time elapses between the incident and the date of the documentation. Two reasons:

• In the employee’s mind, the connection between the incident and the documentation becomes fuzzy. When that happens, employees start to believe they’re being treated unfairly.
• If an employee does decide to file a lawsuit over the incident, a judge might perceive that the supervisor was relying on a dim memory of old events.

There’s no hard-and-fast rule about timing, but the longer it’s put off, the greater the risk to the employer. All the better if the documentation is dated the same day as the incident.

2. Accuracy. Getting the story straight in writing is as much about what’s not said as what’s said.

Yes, managers should follow the reporter’s creed of The Five W’s – who, what, when, where, why – when putting together documentation. But most mistakes occur in the “why” stage.

Reason: too much “editorializing” about events. Examples:

• “Bob showed up late because he was drunk.” That leaves the documentation open to questions such as, “How do you know? Did you take his alcohol-blood level?”
• “You have a bad attitude about deadlines.” How do you define that? Better to describe a measurable behavior: “You failed to meet three important deadlines.”
• “I may not approve of your lifestyle, but that has no bearing on this problem.” Then why mention it? If circumstances are unrelated, there’s no need to bring them up.
• “You sexually harassed Carol three times.” That’s a legal conclusion made only by judges and juries. More accurate: “Carol complained three times that you spoke to her or touched her in a way she thought was inappropriate.”

3. Desired results. The point of any discipline and accompanying documentation is to change behavior. That desired change is another key to good documentation.

What’s a common mistake in this area? Consider, as an example, the situation of the employee who’s habitually late for work. Some supervisors in that instance will write “must be on time for 90 consecutive days” as an acceptable change in behavior.

So, what ends up happening? On the 91st day, the employee shows up late and says, “Hey, I followed the rules of your documentation.” And a judge will most likely agree.

Best bet: Establish a standard for long-term behavior and set out the next disciplinary step for any violation of that standard: “If you’re late again, we will consider suspending you without pay for a period to be determined.”

Administering FMLA leave is painful enough, but it’s worse when employees question decisions about who’s eligible and for what reasons.

Sure, the FMLA regs lay it all out, and in a lot of instances it’s pretty clear, but there are gray areas.

For instance: Are we really sure that Bob needs to stay home for two weeks to take care of his sick wife?

We wanted to avoid conflicts and stay within the law. We also wanted to make sure we were being fair to all employees.

New documentation
We found we could do that, at least in the case of employees who wanted time off to care for ill or injured family.

We set up a rule that those employees would have to obtain medical certification, just the same as if they were providing documentation for their own illness or injury – with one exception. The doctor’s documentation had to indicate that the sick family member needed someone to provide care pretty much full time.

Requiring documentation like that took the decision out of our hands and avoided any appearance of being arbitrary or showing favoritism to some employees.

Now our employees know the rule, and they know it’s applied consistently and fairly. And no one complains when we go by the rule.

(By Holly Thomas, Plumstead, PA)

Got your own best HR management idea? Send it to jgiuliano@pbp.com and we’ll consider it for publication in an upcoming edition of HR Morning.

Employment-law attorney Penelope Phillips says if you can just convince your managers to avoid four common errors, you’ll be miles ahead of a lot of other companies when it comes to effective documentation.

1. Flat “because” statements that can’t be backed up by fact.
Example: “Bob showed up late because he was drunk.”
Problem: Unless someone took a blood-alcohol level test, there’s nothing to back up the statement.
Fix: “Bob showed up late and appeared to be slurring his words when he spoke.”

2. Criticisms that amount to opinions.
Example: “You have a bad attitude about deadlines.”
Problem: How do you define “bad attitude”?
Fix: “You missed three deadlines this month.”

3. Unnecessary statements
Example: “I may not approve of your lifestyle, but that has no bearing on the dispute.”
Problem: Then why mention it?
Fix: “Here are your performance- and behavior-related deficiencies.”

4. Drawing legal conclusion or condemnations
Example: “You sexually harassed Carol three times.”
Problem: That implies a level of guilt that can be verified only by a proper investigation or admission by the charged employee.
Fix: “Carol complained three times that you spoke to her or touched her in an inappropriate way.”

(Based on a presentation by Phillips at the Upper Midwest Law Institute)

The facts: 
An employee sued after being fired for documented poor performance. Basis for the suit: About 60 days before the firing, the employee had filed a complaint with a state agency about safety violations as the company. He charged that the company fired him in retaliation for the complaint, and not because of performance.

The employer said:
The supervisor had a record of the employee’s poor performance, including low performance appraisals. That kind of documentation proved that the firing was warranted and had nothing to do with the complaint.

Who won the case?

Answer: The employee.

Why: A judge agreed that the company had adequate documentation for the termination – if there were no other relevant factors involved. The complaint itself and the timing of the firing were relevant factors that made the termination look suspicious.

The fact that there was only two months between the time of the complaint and the firing raised some red flags, according to the judge. When events are that close, it’s reasonable to conclude that one affected the other.

And the law gives special protections to complaints about safety, since they cover matters of “public policy,” meaning they affect other workers besides the one who complained.

Cite: Kohrt v. MidAmerican Energy Co.