Unlocking the Power of Documentation:
Why and How to Document
By: ROBERT C. BOISVERT, JR.
February 2007
What would you say if I told you there is something that can help you improve employee performance, reduce the risk of being sued, and improve your case if an employee does sue? You would probably wonder what could hold such mystical powers.
The answer is not-so-mystical: documentation. How can something so mundane have such amazing powers? Read on.
Why document?
Terminations often result from discipline or performance problems, when an employee has failed to meet the employer’s expectations. The best way to communicate your expectations and correct the problem is to specify the problem and your expectations in writing.
This communication serves many purposes. It lets the employee know what is expected. It gives the employee a chance to correct the problem and possibly avoid termination. It shapes expectations so that, if the employee is eventually terminated, he or she is less surprised, feels treated more fairly, and is less likely to sue. And, if the employee does sue, the employer will have evidence to prove that it fired him or her for a lawful business reason.
Many employers believe they do not need to document and can simply talk to the employee about a performance or discipline problem. This seldom works. It is hard to deliver bad news, and the employer inevitably waters down the message. Then, because it is also hard to hear bad news, the employee usually hears only part of the message.
Worst of all, if the employee later sues for wrongful termination, the employee and employer may remember the conversation differently. While the employer can testify, jurors distrust employers but believe, and expect, documentation.
How to document?
To document properly, an employer first must investigate the facts. This is particularly important if the problems are serious, the facts are inconsistent or incomplete, or the problems may result in termination. While many people think investigations are large, disruptive, and costly, most consist simply of gathering facts from key witnesses and giving the “accused” an opportunity to tell his or her side of the story.
After gathering the facts, the employer should document the problem. The document should be accurate and fair, written in a factual manner, and sufficiently detailed.
The documentation should tell the story of the performance problem or discipline issue and avoid using labels, conclusions, or jargon. For example, an employer should not write: “You disparaged our customer and displayed a bad attitude.” Instead, the employer should describe the facts, such as: “Yesterday ABC Company, which is our largest customer, phoned me and reported that you called its account representative, Joe Rep, an ‘idiot’ and then hung up on him. When I talked with you today about this complaint, you admitted that during your telephone conversation yesterday with Joe Rep you called him an ‘idiot’ and then hung up on him.”
Finally, the document should explain the employer’s expectations and the consequences of failing to meet them. As a general rule, the stated consequence should be that further performance or discipline issues will result in discipline up to and including termination of employment. This alerts the employee as to the gravity of the problem and gives the employer more flexibility if more problems occur.
As a general rule, the employer should give the employee a copy of the document. Much of its value is lost if the employer simply sticks the document in a file.
Discipline and discharge will never be risk-free. But, an employer that follows these rules can unlock the mystical powers of documentation and increase its chances of living happily ever after.