If HR and/or Managers are going to make a documenting error, it will fall into one of three categories. First, you will have little or no evidence to support the decision to discipline or terminate. You don’t have anything to back up why you’re doing what you’re doing. Second, your documentation is ambiguous or unclear so that employees are not given appropriate notice of the issues. It’s not enough to write down that you talked to Employee A about his performance. Did you talk to him about good performance or bad? And, finally, your documentation contains personal attacks and subjective comments. Stick to just the facts as that’s all the jury expects.
Understanding when to document
The whole point of documenting is to justify whatever employment actions are taken down the road. Therefore, it is safe for you to assume that you should be documenting all the time! Put another way, document when dealing with the following:
- Discipline or policy violations;
- Coaching and counseling;
- Performance management;
- Whenever you say something important; and
- Any time the discussion has relevance to the employment relationship.
If you begin a conversation with “As we discussed before … ,” it’s a good time to start documenting. You should also document anything dealing with a legal issue such as medical leave, disability, Workers’ Compensation, harassment, discrimination, wage and hour, or retaliation.
Bulletproof documentation rules
Rule Number 1: Describe company expectations. Employees need to know what is expected of them. And it shouldn’t be hard for them to find. Employees should be able to define your expectations because they have been documented in the employees’ job description, department goals, ethics and attendance policies and employee handbook.
If your documentation requires employees to “Show up on time,” or “Don’t bring guns to work,” or “Turn in your reports on time,” then it’s not saying enough. Here are some examples of proper documenting of expectations:
- Our attendance policy states that XYZ Corp.’s workday begins at 8:00 a.m.
- XYZ Corp. policy on workplace violence does not permit loaded guns onsite.
- Per the attached email, I requested that you provide me the report at 4:00 p.m. on Monday.
Rule Number 2: Describe the behavior or performance that the employee must change. So often HR and/or Managers have this fear that to document properly is to write a book. For the most part, you can get away with 7-10 written lines. Tips for proper documentation of employee behavior or performance include:
- Don’t describe the individual. Instead, describe the employee’s conduct and keep it fact-focused;
- Keep observations job-related and use objective criteria;
- Describe the impact on others, both positive and negative; and
- Be specific, giving detailed examples.
Rule Number 3: Include the employee’s explanation for why expectations are not being met. This is what is missing from the majority of insufficient documentation. The benefits of asking an employee “Why?” include: Shows two-way communication and fairness; Provides an opportunity for the manager to help the employee correct performance; and Ties the employee to his or her “story.”
Rule Number 4: Detail the action plan and goals. Detailing an action plan tells the jury that the manager is being responsive. It’s good for a jury to hear. Proper documenting of an action plan will include:
- Detailed steps employee will take to improve performance or conduct;
- A list of steps the manager or supervisor will take to assist the employee in achieving the desired results; and
- An agreement with the employee.
Rule Number 5: Describe the consequences if the behavior or poor performance continues. Rather than turn to the classic consequence for continued poor performance— “You can be disciplined up to and including termination” —sufficient documentation of consequences need only clearly state what happens if performance or behavior does not improve, such as discipline, demotion, no promotion, additional training, etc. When necessary, however, HR is wise to include that magic language, but don’t use that as a starting point. It’s vague and creates a lot of grey area.
Rule Number 6: Include time expectations for correcting behavior or performance. Simply documenting that you expect an employee to turn things around immediately won’t protect you in court. Proper documentation of time expectations will be realistic and cautious of including an exact time frame (e.g., 30, 60 or 90 days). It may be wise for you to consider leaving the time expectation open because of how busy HR gets (e.g., “By our next staff meeting.”).
Rule Number 7: The follow-up. Follow-up is critical to both bulletproof documentation and fairness. Be careful to include an exact time frame, but remember that when you do so, you must follow up. You will also want to amend your documentation when necessary to detail what happened when you followed up. Proper follow-up documentation will include a description of what will happen when you follow up, including:
- What part of the performance you will be reviewing;
- Specific improvement expected;
- Any additional training; and
- Further discipline.
- Allison West, SPHR