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Documentation: Do It, But Do It Right

Reprinted in The Retailer, the publication of the North Carolina Retail Merchants Association


One deficiency that appears repeatedly in the employment law area is employers' lack of effective documentation relating to employee performance problems or misconduct. This shortcoming runs the gamut from a total absence of documentation to voluminous documentation done so poorly that it is worse than no documentation at all.

Why Should an Employer Bother to Document?

  • In this world of ever-increasing lawsuits filed by disgruntled present and former employees, a well documented file can be an employer's best ally. Contemporaneous and thorough documentation of an employee's deficiencies or misconduct can often prove to be vital evidence in defending against an employee's claim. Conversely, the absence of documentation will certainly give rise to the argument that it "wasn't serious enough to be reduced to writing," or result in relentless attacks (often successful) at trial on the flawed memories of managers and supervisors. As one wag has said, mental notes are worth the paper they are printed on!
  • Properly done documentation can be a powerful preventive measure to ensure that employer disciplinary decisions are supported by legitimate, nondiscriminatory reasons and that discipline is imposed in a consistent, evenhanded manner.
  • Proper documentation not only puts an employee on clear notice of job-related problems and expected future corrective behavior but smacks of fundamental fairness which may some day serve an employer well before a jury.

In a busy work day, it is all too easy for a manager or supervisor to put off and never get around to the drudgery of extra paperwork. Thus, it is incumbent upon management to make it abundantly clear that documentation is important and is expected. Once such a mindset has been established, there are a number of basic guidelines that should be followed in documenting:

  • Be absolutely truthful, stick to the facts and avoid speculation, editorial comments or opinions. All documentation should be written with two thoughts in mind: Is this document a fair and accurate account of the events in question? Would I feel comfortable having this read back to me in a courtroom and being subjected to vigorous cross-examination regarding my written statements?
  • Document events as close in time to their occurrence as possible.
  • Be short and to the point. Placing a premium upon brevity helps to prevent inconsistencies and avoids surplus information that detracts from the importance of the documentation.
  • The documentation should be shared in private with the affected employee and the employee should be given the opportunity to disagree with its contents. The employee's failure to disagree with the documentation can be a persuasive point if legal action subsequently occurs.
  • Jealously guard the confidentiality of all documentation. Restricting personnel-related documents to persons who need to know is a must. Failure to follow this admonition can result in defamation and intentional infliction of mental distress claims.

Whether as an aid in making informed day-to-day employment decisions or in defending a lawsuit, effective documentation is time well spent. To this end, employers should strongly consider evaluating their present practices regarding documentation and, if necessary, implement training, retraining, and any needed changes.

 | © Poyner Spruill LLP. All rights reserved.

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