How To Avoid The ‘Seven Deadly Sins’ Of Employee Performance Documentation

It is important to understand how employee discipline should be handled. In some situations, managers can inadvertently make documentation mistakes creating a legal problem for the  company – such as a manager who back dates documents about a female route driver who is constantly late for work. Once the importance of why management should properly document employee performance and conduct issues is understood, here is a quick guide on how to avoid the seven deadly sins and traps managers can fall into when doing so:

Your practice points are to document timely and accurately; document objectively with no opinions or in anger; be consistent in how you document discipline for all employees; and when in doubt, call Human Resources or your legal counsel. I’ve always said, you cannot stop employees from suing, but when they do, let’s make sure we have the best defense possible.  

  1. Document Problems As They Occur: No one has perfect memory and documents are more believable when they are created as soon after an event as possible. Such items to document are the employee’s performance issues, attitude and other work related problems.
  2. Do Not Create Smoking Gun Documents: We never want to create a document that feeds right into an employee’s hand building their case for them against the company. For example, never mention anything about an employee’s protected status (i.e., age, race, national origin, religion, military/veteran status, disability, gender, pregnancy or sexual orientation) or any management opinions. Stick to the facts of what happened and what was inappropriate about what the employee did or said.
  3. Don’t Vent, Be Nasty or Sarcastic: Always describe employee-related problems and events objectively. Remember to cool down before you discipline an employee so that you can be more objective and fair in your evaluation of the events that just occurred. Sometimes it helps to “get it off your chest” and draft what you wanted to say but immediately delete it without saving or sending. Then, once you’ve cooled down, draft an appropriate discipline document.
  4. Don’t Guess Or Speculate About Facts You Can’t State For Certain: For example, don’t guess about the number of absences or dates you verbally reprimanded. You need to be able to back up facts under oath. Don’t go off on tangents on issues insignificant to the employee’s performance. Remember, this documentation can be used later at an agency hearing or jury trial.
  5. Give The Employee A Copy Of The Document: After the employee reviews the write-up or discipline document, also request the employee to sign the document that just acknowledges s/he received it (they do not necessarily have to agree to what is written). We cannot force them to sign. So if the employee refuses to sign, then simply indicate so on the document. As a side note, if an employee wants to write a rebuttal, allow them to do so and place it with the write up in the employee’s personnel file.
  6. Back Date Documents. This will only come back to haunt you at a hearing or trial when you are called out for doing so. Then, what was once a reliable looking document to support your case is no longer trustworthy or credible, and, consequently, nor are you as the company’s main witness. An investigator or a jury will then assume the only explanation for this is you are hiding something and must have discriminated against the complaining employee.
  7. Know When To Ask For Help: If the discipline you are giving is not routine, or you are not sure what to do, ask your Human Resources Department or even legal counsel for help. For example, if an employee has filed a discrimination lawsuit, much care is needed in correctly documenting any disciplinary problems. If not, you could potentially add on another claim for the employee of retaliation. This is commonly seen where the employee’s underlying discrimination charge has no merit, but when management inappropriately documents discipline or even discharges the employee a legitimate case is created for giving the appearance of retaliation.

Your practice points are to document timely and accurately; document objectively with no opinions or in anger; be consistent in how you document discipline for all employees; and when in doubt, call Human Resources or your legal counsel. I’ve always said, you cannot stop employees from suing, but when they do, let’s make sure we have the best defense possible.

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