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.”