Exhibit A: Avoid the 3 most common documentation mistakes

by Allison West, Esq., SPHR

“Document, Document, Document.”

Employment attorneys say it all the time. In fact, they’re incapable of saying that word only once because documentation relating to performance management and discipline is absolutely critical.

The reasons are obvious. The quality of your documentation goes to the heart of your credibility as a manager or HR professional.

The person reading your documentation should walk away knowing who, where, when, how and most important, the why behind any decisions … and that you treated the employee consistently and fairly. Anything less and your documentation becomes Exhibit A for the plaintiff.

Mistakes, Mistakes, Mistakes

One big problem is getting each manager to actually document performance and disciplinary discussions. Not surprising, documentation—when it is created—is often too ambiguous, vague, biased and never actually puts employees on notice of any performance or behavior issues.

Here are three of the most common documentation mistakes and how you can avoid them:

1. Surprise!

No employee should ever be surprised when he or she is terminated for poor performance or a disciplinary reason.

Here is a common scenario: The manager has put Betty on super-secret probation for the past three years—but never tells her about it. Just recently, the manager decided enough is enough. He wants Betty terminated. In-house counsel reviews the personnel file before signing off. Much to counsel’s surprise, Betty’s performance actually looks pretty good.

When in-house counsel asks the manager why the file doesn’t reflect his true opinion of Betty’s performance, the manager says, “Well, she’s sensitive, and I didn’t want to hurt her feelings.” The resulting ambiguous documentation doesn’t put the employee on notice of the problems.

Your documentation must be direct, include specific expectations and the reasons the employee says she’s not meeting those expectations.

2. Legally explosive words

Documentation is black and white. When third parties—say a judge, jury or plaintiff’s attorney—read a manager’s documentation, they can only go by what is written down.

Often, managers write absolute expressions such as “always” and “never,” as in “Hillary never turns in her reports on time.” In reality, Hillary informs you that she did hit her deadline just last month. Using these types of absolutes without being 100% certain will undermine your credibility and hurt your case in court.

Choose your words carefully. If you want to highlight your concerns to Hillary, simply state the facts: “In the past three months, you turned in your weekly reports on time only once.” This way, you’re more accurate and accomplish what you wanted in a more professional tone.

3. Lack of follow-up

Solid documentation must include regular follow-up discussions.

Take this example: A manager informs Bob about his performance deficiencies and gives him a step-by-step improvement plan. Documentation is solid up to this point. Unfortunately, Bob continues to struggle for the next six months. But the manager fails to ­­­document any follow-up conversations or efforts made to assist Bob. Now the manager wants to terminate Bob.

The problem: The documentation is incomplete. The judge, jury or plaintiff’s attorney that reads it will assume the manager put Bob on notice yet did nothing over the next six months to ensure Bob was getting the assistance.

Proper documentation would include the coaching sessions, Bob’s stated reasons for not meeting his goals and efforts by the manager to help Bob. Also, document that Bob knew he could be terminated if he did not meet the stated expectations.

The bottom line: At the end of the day, your documentation must be accurate, state the facts, include the employee’s explanation and show all the efforts the manager made to help the employee succeed. Anything less, well, you know what happens.

________________________________

Author: Allison West, Esq., SPHR, is a former employment law litigator and the founder of Employment Practices Specialists, a training and consulting firm based in California.

Tips for documenting employee discipline

Be consistent. Don’t write up one person for a behavior that you ignore in other employees.

Be specific. Example of poor docu­­mentation: “Employee was late twice in the past two weeks.” Better: “Employee was 30 minutes late on Sept. 28; reason given: traffic. Employee was 45 minutes late on Oct. 4; reason given: overslept.”

Be clear and factual. Note the policy or procedure that was violated. Date the document, including the year.

Avoid emotional content, including personal impressions (“I think …”), labels (“He’s a whiner …”), adjectives (“very unproductive …”) and drawing conclusions about the reasons. (“It’s probably because of her divorce.”)

Ask the employee to sign and date the document if it’s going into his or her personnel file. If the employee re­fuses to sign, note that on the document.