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Beware cryptic notes in your HR files–they could be used against you in a later lawsuit

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in Discrimination and Harassment,FMLA Guidelines,Human Resources

Before you enter into official files your handwritten notes on conversations, recollections or thoughts about an HR decision, consider how your words might be interpreted. Years from now, will you be able to re­­mem­­ber exactly what your scribbled notes meant? Could anything you wrote be interpreted more than one way?

Best practice: Draft a memo that summarizes and fleshes out your notes—and that makes your ideas perfectly clear. Then toss out the original notes.

That kind of paper trail is self-explanatory, not a record that could be interpreted several ways.

Recent case: Marc Penberg, age 53, worked for Healthbridge Man­agement. He has diabetes and had undergone heart surgery that re­­quired him to use FMLA leave.

Penberg’s job involved converting patient referrals to the company’s rehabilitation facility into actual placements. Employees like Penberg conducted medical screenings on all referrals. He would later claim he was the company’s top producer, signing up the most patients for the rehabilitation program.

Penberg did not have a medical or nursing degree and would later claim no one ever told him he needed anything like a certification or license.

Then, about the time Healthbridge Management was contemplating a reduction in force, Penberg learned he needed more heart surgery and asked for leave. Despite what he said was an exemplary record, Penberg found himself out of a job.

He sued, claiming age discrimination and FMLA violations.

During discovery, Penberg’s lawyers learned that the HR manager had kept notes that were taken during the reduction in force planning sessions. Those scribbled thoughts said, “January 20 back from leave, diabetic +50.”

Plus, Healthbridge Management company claimed it terminated Penberg because it wanted medical assessments done by licensed professionals—but it did not mention that business need until the litigation had already started.

Taken together, the court said those two factors were enough evidence to send Penberg’s age discrimination and FMLA retaliation claims to trial. (Penberg v. Healthbridge Man­­age­­ment, No. 08-CV-1534, ED NY, 2011)

Note: Of course, the company may be able to offer a different explanation for the notes at trial. For example, it could argue that the notes were just the HR manager’s assessment of litigation potential. That is, she might have been trying to decide whether this was a termination that could lead to a lawsuit (as it did). It’s a matter of credibility, and the jury will get to decide which version is true.

Warning: There is nothing wrong with tossing the notes you use to prepare a memo or letter or to help you make a decision. However, you must do so before you have reason to think there is going to be a lawsuit.

Once an employee files an EEOC complaint or a lawyer indicates that litigation is likely, you have an obligation to preserve all documents related to the case. If you destroy documents, the court may tell the jury it can assume the missing notes support the employee’s account. Contact your attorney for specific guidance.

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