An Ounce of Prevention is Worth a Pound of Cure – Documenting Employee Work-Performance Issues

When I give a presentation to Human Resource professionals, I often joke they will hear me say “document, document, document” at least twenty times when discussing employee misconduct. And for good reason—documentation of employee counseling regarding performance expectations is essential when defending against an employment discrimination claim. But not all documentation is “good” documentation. In this advisory, I’ll walk through some of the best practices for documentation, and also discuss pitfalls I’ve personally seen during litigation.

As an employer-side defense attorney, I assist employers with a host of employment issues from pre-employment advice through post-employment litigation for alleged wrongful termination. During litigation I’m sometimes faced with facts that seem to indicate the employer engaged in unlawful conduct because the documentation is lacking in substance or is just incorrect.

I understand employers are busy and can’t formalize every instance of employee performance shortfalls. For example, a first-line supervisor may verbally correct an employee who is failing to abide by company standards. If this occurs, the first-line supervisor should send an email to the employee later in the day to document the employee received a verbal warning—bonus points if the supervisor cites to the specific provision in the employee handbook or policy that was violated. Contemporaneous documentation like this is crucial when defending an employment discrimination claim because it shows the employee was written up for a legitimate, non-discriminatory business reason.

I’ve seen incorrect documentation where the supervisor verbally terminates an employee and states the reason for termination was a violation of a company policy (and, indeed, cites to and discussed the policy with the former employee during the termination) but then provides additional reasons for termination that weren’t supported by company policy in the former employee’s personnel file. There was no nefarious purpose on the supervisor’s part (the supervisor was just trying to explain further), but it created enough of a fact dispute that it has led to protracted litigation and may preclude summary judgment due to this factual dispute. To prevent this, the best practice is to have the termination reason(s) typed out ahead of time and cite to the specific company policy(ies) or provision(s) of the employee handbook as the basis for termination. When assisting clients prior to employee termination, I tell them to treat the documentation as if it was handed to them as an exhibit during a deposition—the documentation needs to be honest, concise, and cite the basis for termination.

When Human Resource professionals are involved, these processes usually go very smoothly. But not every company has an in-house Human Resource Department and, if they do, the Human Resource Department may not be aware of every action supervisors are taking (or failing to take). For employers without a dedicated Human Resource professional, company policies regarding standards of conduct should be reviewed for legal sufficiency before being put into use and then followed as closely as possible when making employment decisions. For instance, a supervisor who issues a write-up to an employee for tardiness needs to ensure he or she is issuing write-ups to all employees for similar levels of tardiness and not just singling out a sole employee. For employers with a dedicated Human Resource Department, it is up to these professionals to train first-line supervisors on how to properly document employment actions and tap into institutional knowledge and precedent to ensure company policies are being uniformly followed and enforced by all divisions, departments, business lines, etc.

Documentation mistakes will happen. It’s not the end of the world and most of the time it can be corrected. But taking a little bit more time on the front end to ensure documentation is correct, will mitigate potential liability on the back-end. For assistance or questions related to documenting employment actions, contact Evan Way or another member of the firm’s Labor & Employment Practice Group.


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Associated People:

Evan Way

Practice Area:

Labor & Employment