By Candace A. Bankovich and Celia M. Pauli
Even in a near-paperless society, documentation is still as important as ever. Employees leave, memories fade and often the documents are the only remaining storyteller. Nowadays, we create “documents” by more methods because of technology. For example, stories are told via emails, texts, instant messages and social media posts.
Preparing and maintaining good documentation is a practice that seems simple in theory. But it requires discipline and training for those creating documentation. It’s important to know that just as good documentation is helpful, bad documentation can be harmful. We all likely have seen the “bad documentation,” such as emails that circulate sexual jokes, text messages that joke about an individual being unable to perform her job because she has “mom brain” or a social media post that stereotypes certain demographics. While we want to caution employers to avoid creating documentation that can be construed as discriminatory, harassing, retaliatory, etc., we want to encourage positive document creation and maintenance.
Helpful documentation can take many forms. For example, employee files should include all documents pertaining to his/her employment, except for medical records; medical records, such as physical exams or records related to an employee’s medical leave, should be maintained in a separate file. The employee file should include the employee’s application, hiring documents, training and orientation documents, including acknowledgment of handbooks and policies, performance reviews and evaluations, disciplinary records, complaints and termination documents. The file also should include job descriptions for all positions the employee has held along with documentation regarding the employee’s compensation.
Although it can be helpful to have performance evaluations in employees’ files, it can also be detrimental if not properly written. The evaluations should be specific and provide concrete examples. For example, rather than including, “Joe never meets deadlines,” use more specific language, such as, “During the course of a month, Joe was unable to meet four deadlines. He was one day late on two assignments and failed to complete two assignments.” Without examples, the performance evaluations fall flat and do not provide a clear picture of the employee’s quality of performance.
The importance of documentation is not limited to employee files. Employee handbooks and policies are also important documents that will tell a story. For example, an employer with a clear anti-harassment and anti-discrimination policy, which includes a reporting and investigation process, will have concrete evidence of its policy versus witness testimony that it did not permit harassment or discrimination of its employees. Additionally, it may provide the employer with the “reasonable care” affirmative defense. In order to take advantage of this defense, the policy must include the following:
1. A clear explanation of the prohibited conduct;
2. Assurance against retaliation;
3. A clear description of the complaint process that provides multiple avenues of reporting;
4. Assurance that the employer will protect the confidentiality of the complaints, to the extent possible;
5. A complaint process that provides prompt, thorough and impartial investigations, and;
6. Assurance that the employer will take immediate and appropriate actions when it determines harassment has occurred.
Documenting complaints and the steps taken after a complaint also are extremely important aspects of the story to capture. Oftentimes, we hear that an employee made an “informal” complaint to human resources or asked that his/her complaint be “off the record.” However, no complaint is off the record for human resources. Whether the complaint is made in the lunch line, at drinks after work or during a brief exchange in the hallway, the complaint needs to be documented. Documentation of complaints should comply with the employer’s policy and should initiate the investigation of the complaint. The file also should contain what was learned, conclusions drawn and the steps taken after the investigation.
Here are four tips for employers to consider to ensure adequate documentation:
1. Consider the audience. While the documenting supervisor may think that only upper management and the subordinate will see the performance evaluation, employers should also consider how the document will look if it was enlarged to the size of a movie theater screen and presented to a jury as “Exhibit 1.”
2. Avoid editorial comments and unsupported, general statements. For example, avoid stating that the employee “is not a good fit” or does not “fit with the employer’s culture.” While such statements may not be made with ill-intent, these statements may be construed as discriminatory and used as evidence of unfair treatment, particularly if the employer’s employee base is primarily of one demographic. Do not comment on employees’ protected characteristics. While such advice may seem obvious, it deserves to be emphasized. The statement, “Jane’s attendance has become a problem with all of her medical appointments” can be used as a “smoking gun” in a disability discrimination lawsuit or Family and Medical Leave Act case.
3. Be consistent in documentation. It is important to maintain documentation for all employees, not just the unsatisfactory employees. For example, in a discrimination case, employers often will need to distinguish potential comparators. Positive performance reviews can make or break a potential comparator.
4. Avoid making excuses for the employee or attempting to ease the criticism. For example, “I know that Sally has been extremely busy lately, but she has failed to complete tasks in a timely fashion.” These excuses hurt the credibility of the document and only undermine the review.
As defense counsel, when confronted with a lawsuit from a former or current employee, there is nothing better to see than a well-maintained and documented employee file and not extraneous, bad documentation that either is harmful or takes the focus off the issues. While providing training and preparing good, adequate documentation is time-consuming and may appear to be a burden, it is important to maintain a healthy workplace and to tell the employer’s good stories.•
• Candace A. Bankovich chairs Lewis Wagner’s labor and employment law practice group and Celia M. Pauli is a member of the firm’s labor and employment practice group. Respectively, their emails are [email protected] and [email protected] Opinions expressed are those of the authors.