It’s not always what’s missing from employee documentation that could get you in trouble. It’s also what may already be in your documentation that could land you on the wrong end of a lawsuit.
Get it out
Recently, employment law attorneys shared some of the costliest mistakes they’ve spotted in employers’ documentation.
It’s crucial that HR pros — as well as managers and supervisors — be on the lookout for these mistakes.
Attorney Jason S. Ritchie of the law firm Holland & Hart LLP, summed up the situation best on his firm’s Employers’ Lawyers Blog: ” … poor documentation is worse than no documentation, after all.”
Without further ado, here are three mistakes that make documentation less effective — and potentially harmful:
Using characterizations in place of specific examples
When documenting employee conduct, managers should avoid using legal characterizations, says attorney Kevin A. Troutman of Fisher & Phillips LLP (Cite: Law360).
An example of harmful language: “Mike sexually harassed Beth.” This is troublesome because it’s an objective characterization that could be viewed in court as an admission the harassment occurred and the employer failed to stop it when it should have. In other words, it may create liability for the employer.
What’s better? Record specific details regarding what an employee did or didn’t do — like, “Cheryl said she saw Mike rubbing Beth’s leg under the table at Tuesday’s meeting.”
In addition, using general labels for employees could have a damaging effect if they’re interpreted (by an employee-side attorney, a judge or a jury) as being used to cover up for bias.
- “He doesn’t fit in.” (This could be code for the person is different because of race, age or gender.)
- “She’s not a team player.” (This could be cover for a person who takes intermittent leave for an illness.)
Make sure managers avoid labels like these and stick to specific examples of employees’ behavior.
Diagnosing the problem/editorializing
It’s human nature to want to diagnose “why” an employee is performing or acting a certain way, and a lot of inexperienced managers do it. But don’t, warns Ritchie (Cite: Employers’ Lawyers Blog).
Even if a manager has a reason to suspect a person’s medical, financial or family situation is causing problems, the manager should keep those opinions to himself/herself.
Those kinds of “diagnoses” may make it appear as though your company’s picking on the employee for those reasons, which may be viewed as discriminatory.
Also, managers shouldn’t editorialize – i.e., share their “impressions” of what happened.
Example: Don’t say, “I gave her clear instructions.”
Instead, be specific: “I told her the deadline was Friday.”
It helps to show the manager remembers exactly what was said.
Letting inconsistencies creep into policies/agreements
It is always a good idea to update employee policies and agreements regularly.
But there is a danger to watch for in doing so, says attorney Paul R. Monsees of Foley & Lardner LLP(Cite: Labor & Employment Law Perspectives).
What is it? Creating inconsistencies between documents.
Example: Long-standing employment agreements may list infractions that could result in immediate termination. Meanwhile, a newer disciplinary policy may have a different list of infractions.
When that’s the case, it leaves room for debate about which one applies.
Another common inconsistency to watch for is in how employers ask workers to report harassment or discrimination
Monsees recommends replacing instructions that an employee “should,” “is strongly encouraged to” or “shall” report an incident with a requirement that incidents be reported “in writing.”
This eliminates confusion as to what amounts to an official report.