Doâ™s, Donâ™ts, and Rules for Bulletproof Documentation
Employment law attorneys arenâ™t allowed to just say âdocument.â They always say âdocument, document, document,â and thereâ™s a good reason for using those famous three words because documentation is that important:
* It gives you credibility
* Itâ™s how you show the world that you did what you say you did
* It allows you the opportunity to see your decisions in black and white
* It shows that you treated employees with fairness and consistency
* Itâ™s Exhibit A when you go to trial
To move toward better documentation, start by thinking through who will be looking at your documents down the road. It could be a fact finder, an investigator from the EEOC, or a representative of a state agency.
Or it could be a jury. And who sits on a jury? People who will compare your behavior to behavior theyâ™ve experienced and to what they think is right. (âI had a manager just like thatâŚand now I can get back at him.â)
Do create contemporaneous documents. Do documentation at or around the time something happens. If you wait 3 weeks, itâ™s a little suspect. And if thereâ™s no documentation, itâ™s easy for the opposing attorney to beat you back.
Donâ™t ever backdate documents. If you are documenting late, fine, but donâ™t backdate. That will be found out, and you can be picked on and chopped up during cross-examination.
Do include a full date. If there is no date at all, itâ™s very suspect. Especially under cross-examination, witnesses will find it very hard to state a date with accuracy.
Consider the case of a worker who was terminated during pregnancy leave. The only document to support the companyâ™s contention that her termination was part of a RIF was one sheet of paper, lined, yellow, 8 1/2 by 11. The page had three different entries in different colored inks, including one that had the employeeâ™s initials. And it had a day and date, but no year.
Itâ™s hard to convince anyone that thatâ™s a meaningful document. Remember, that when you are in court, this document is going to be there, blown up to the size of New Jersey.
So, do include the full date, and include full names at least once. After that, initials or first names are OK.
Do get the employeeâ™s signature. When possible, obtain the employeeâ™s signature to verify that you had the discussion. Youâ™d like a way to show that you have shown the document to the person.
Donâ™t use inflammatory phrases. For example:
* I thought someone like you would be above this
* Everyone on the team gets it but you
* You should know better
Be complete and unambiguous. For example, âYouâ™d better turn things around, or elseâ just doesnâ™t mean much.
Donâ™t make inappropriate conclusions of fact or law. For example, âThis is the worst case of harassment Iâ™ve seen.â Now âharassmentâ is on record.
Or employee Sandy says: âChris is making me uncomfortable,â and her manager documents: âSandy is being harassed by Chris.â
Thereâ™s side problem with this. Now the employ now thinks: âOh, I thought I was just uncomfortable, but now I realize Iâ™m being harassed. Hmmm. Maybe I should call a lawyer.â
The easiest thing to do is to document the employeeâ™s words, and, in conversation, to mirror back employeesâ™ words: âIâ™m sorry itâ™s making you uncomfortable.â
Donâ™t use generalities, overstatements, and exaggerations. Generally, such statements are too vague. For example:
* Nothing seems to get through to you
* Youâ™re always late, you donâ™t care about your job
* It appears you donâ™t care
Donâ™t use absolute expressions unless completely accurate. For example:
* âYou are always late.â âActually, I was on time today,â the employee will say. This completely takes the wind out of your sails.
* You never volunteer to stay late.â âYes, I did on March 2nd.â
* âAlways,â âevery time,â âinvariably,â and similar words cast a negative tone, are not accurate, and suggest bias. Instead, use âoften,â âtypically,â etc.