We’ve said it before and we’ll say it again: Nothing wins lawsuits like good records.

In fact, the most often cited reason employers lose employment discrimination lawsuits is because someone failed to take record-keeping seriously. Without something to back up decisions and refresh people’s memories, what happened several years ago may as well have happened in prehistoric times.

No manager is going to remember why she did what she did without notes or other documents.

Here’s how to make sure the company won’t be caught off guard: Tell all managers and supervisors that HR won’t approve any disciplinary action without a copy of the documentation used to justify the decision. It doesn’t have to be formal. It can be as simple as a few notes describing the event that precipitated the discipline. What counts is that someone can explain to a jury that the company acted in good faith.

Mastering Employee Discipline: Documentation Strategies and 101 Sample Write-Ups will show you how to document and discuss employee discipline in the most clear, accurate and legally safe way possible. Best of all, your host will be Paul Falcone, vice president of HR at Time Warner Cable and the man who wrote the best-selling book on the subject, 101 Sample Write-Ups for Documenting Employee Performance Problems: A Guide to Progressive Discipline & Termination. (One of SHRM’s “Great 8 for 2008” books.) Get the audio recording here
Recent case: Joseph Martinez retired from the New York City Department of Education, where he had been a guidance counselor. He then sued his former employer for sex discrimination and retaliation. What caused all the trouble was an allegation by another guidance counselor that Martinez was sexually harassing her.

The department investigated and concluded that while Martinez may have been “boorish, pestering and insensitive,” his conduct could best be characterized as creating “workplace disharmony” rather than sexually hostile harassment.

The department ordered Martinez to cease and desist in “creating disharmony” and sent him to sexual harassment training. In addition, HR suggested he be transferred to another school to avoid contact with the other guidance counselor.

The transfer upset Martinez and he got angry. That precipitated an order to attend anger management training. He refused and then received a warning that he would be disciplined if he didn’t show. That’s when Martinez decided to retire, perhaps assuming that he was being pushed aside even though he had been cleared of the more serious sexual harassment charges.

The court dismissed all of Martinez’s claims after hearing clear testimony about the sequence of events. The HR department backed up each disciplinary action with a rational reason and the records to prove them. Plus, Martinez couldn’t point to any other employee who had been treated any differently. (Martinez v. New York City Department of Education, No. 04-Civ-2728, SD NY)
Mastering Employee Discipline: Documentation Strategies and 101 Sample Write-Ups is the ultimate guide to drafting clear, concise and legally airtight write-ups on performance problems, behavior issues and more. We’ll provide the strategy, direction and the ready-to-use documentation templates—in one handy source. Access this training for HR and managers...
Final note: This situation is more common than you’d think. HR was in a “damned if you do, damned if you don’t” situation.

In fact, it’s risky to clear an employee of sexual harassment and discipline him anyway. By rejecting the sexual harassment charges, you anger the employee who brought the charges in the first place. Disciplining the alleged harasser for another reason isn’t likely to satisfy the alleged victim either. On the other hand, the employee who is punished may believe he’s being pushed out and may look for his own lawsuit. That’s what happened in this case.

Always consult counsel if you think either the alleged victim or alleged harasser may sue.
Mastering Employee Discipline will help you:

  • Master progressive discipline and effectively structure terminations.
  • Draft warnings, discipline and termination documents – the right way.
  • Shift responsibility for improvement away from the organization and back to the employee (where it rightfully belongs!).
  • Allow employees a chance to take ownership of their own performance improvement.
  • Erect a legal barrier against wrongful termination lawsuits.
  • Avoid the common mistakes employers make with their discipline policies and follow-through.
  • Employ alternatives to formal disciplinary warnings, including letters of clarification and decision-making leaves.

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