10 Tips on Defensible Documentation

Rod Stephens
September 29, 2008 — 2,617 views  
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I am often asked by people for tips on documentation practices that are "legally defensible."  Truthfully, the recipe for legally defensible documentation begins with common sense and ends with a consideration of who your audience will ultimately be. Unfortunately, I can't help you with common sense. You either have it or you don't. There is no middle ground. As far as your audience, potentially it could be an EEOC investigator or a jury. That audience will look for a degree of clarity in your documentation that you might not usually employ.  As a result here are my 10 tips on defensible documentation:

1.    Write it down...all of it.

Your credibility, and that of your employer, is at issue.  Nothing undermines the credibility of an individual more than information that was created at a much later date or contains material omissions.  You may think that a particular matter is so unique or outrageous that you will never forget it, but you need to write down all pertinent information. Although you may not have had any type of bad motive, at a later date, when your "memory" is examined in the harsh light of a deposition, there will be a suspicion that gaps in your documentation are due to an effort to cover up information that will help an employee. It could also be the difference between your company's ability to get a case dismissed before trial or having to go through the expense of trial.

2.    Stick to the facts...just the facts.

Since your documents will in all likelihood become evidence in a lawsuit. You will have to justify your statements. If you guess, exaggerate, offer personal opinions or see this as an opportunity to work on your creative writing skills, find a different profession.  A good employment lawyer will take your documentation apart.

3.    Strictly Business.

Although you may have personal opinions regarding a company policy, a manager, a complainant's work environment, or the complainant.  Your personal opinions, especially if they do not have a factual basis, will impair your credibility and give rise to the claim that you were not objective.

4.    Use Company Procedures for Support.

In the event you are handling an issue that is covered by a particular policy or procedure, make reference to it. By doing so, you create the impression that you are a being consistent in following internal protocols.  In addition, if there is a protocol that should be followed, follow it or get rid of the protocol.  By following and relying on policies and procedures, you create the impression of credibility and fairness. I once tried a case in which the thoroughness of a sexual harassment investigation was at issue. The corporate Human Resources Director was called. He explained how he conducted the investigation. He was cross examined using a five page investigation policy that he drafted. The policy was not followed. After the jury returned a verdict for my client, one of jurors commented that he could not believe that a large company would have such a detailed policy and not follow it.

5.    Confirm access to policies and procedures.

If certain company policies are involved, provide them to the involved parties and make note of their receipt. This will demonstrate your familiarity with the policies and that you have taken steps to communicate your expectations to those involved. By doing this, you will lend an air of credibility to your actions.

6.     Tell us why the document was created and when

Sometimes the purpose of the document is not apparent.  In those cases explain why the document is being kept. If the document relates to a meeting reflect when and where the meeting occurred as well as who was present.   If the document was given to someone, have them acknowledge receipt.

7.    Warning: Performance and Discipline Issues

Clarity is the hallmark of effective performance and discipline documentation. Your performance and discipline documentation should be objective and convey an air of fairness.  More than any other time it is imperative to put your emotions to the side. If coaching or any other assistance was given before a negative performance rating was given or if the employee was given chances to correct their conduct before discipline was imposed, make sure that is reflected in your documentation.  Leave room on your document for the signatures and employee comments. Train your supervisors and managers to get employee signatures and in the event an employee refuses to sign, have managers make an appropriate notation.

8.    I never promised you a rose garden....

Don't make promises you can not keep. If you tell an employee that you will talk to someone just to stop them from complaining and then you don't do it, your credibility will become an issue. If your are handling a matter involving harassment or discrimination, then include language that the company from your handbook about your company's commitment to provide a work environment free from discrimination.  In addition, all documents disseminated to the employees should mention that your company is an "at will" employer.

9.    Be a disciplined historian.

With the hectic schedules that HR professionals have, sometimes it is difficult to document everything. Take the time.  Those few minutes spent documenting a file can be the difference between winning or losing a lawsuit. Your notes don't have to be treatises, but make sure they contain the date and time and reason they were prepared. Consider this.  Employee sues the company for a discriminatory discharge. Employee testifies, "Sure, I made some mistakes but they were infrequent and certainly not major omissions. Look at my performance reviews.  They weren't stellar but I always received a satisfactory rating."  Now it's your turn to get up on the witness stand. Do you want to be the witness that testifies, "Gee, this person was consistently failing to perform his work but as to the specific instances, I wish I could remember but its been three years....I can tell you one thing, I was glad when we finally fired this employee!" Perhaps a more compelling line of testimony would be, "Yes, this person had performance difficulties. As I review my notes, I met with the employee and his immediate supervisor to discuss ways to coach him to succeed. Those meeting occurred on the following dates........"

10.    Remember the Goose and the Gander

My mother used to say, "What's good for the goose is good for the gander."  In other words, be fair and consistent.  This is good advice for HR professionals. More often than not, it is the most vocal and disruptive employee that causes the employer to document.  If you are going to document performance deficiencies, make sure you do it for all employees. Otherwise you run the risk of being viewed as having bias or an improper motive in the enforcement of policies.  

I hope this gives you some food for thought.

Later,

Rod

Rod Stephens

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Rod brings a unique perspective to the table in that he represents management and employees. We feel this allows us to offer a broader perspective to our clients in that we understand cutting edge employment law issues and how they are perceived by management and employees. Employment law matters can require immediate response in times of crisis. On those occasions, you can take comfort in the knowledge that we are prepared to provide the type of response that takes advantage of years of experience.