Quality Documentation

Posted on March 2, 2016 in Consulting, Employment Litigation

There is an old adage in HR: document, document, document.   A better motto is good documentation beats a bad claim.  Only well written documentation matters when an employer is trying to win an unemployment claim, fight off a claim by a former employer, or, in the most extreme scenario, to convince a jury that it acted appropriately.

Let me demonstrate my point with a typical scenario.  A client forwards me a demand letter from a lawyer representing a former employee claiming wrongful termination.  My first focus turns to the personnel file.  I hope to find documentation that stands on its own to explain the rationale for the employee’s termination that I can voluntarily send to the lawyer so that he understands his client’s allegations are irrelevant.  The easiest way to knock the wind out of a blowhard plaintiff’s lawyer is to freely share with him evidence that his case is far weaker than he hoped.  More often than not that will come from a personnel file.

Well written personnel decisions have the following characteristics:

• Signed and dated by the author;
• Relies on objective facts (examples where appropriate), not opinions or speculation;
• Cites to appropriate detail (the relevant event, date of incident, witnesses);
• Explains the investigation that occurred to support the conclusion;
• References applicable rule or policy and perhaps attaches it;
• Identifies prior discipline if applicable;
• Provides employee opportunity to sign and state his/her defense.

Consider the alternative scenario.  I get a demand letter alleging wrongful termination and my client forwards me a personnel file with a few “check box” form without any elaboration.  The checked boxes fail to tell the story.  I have to set up a conference call with the supervisor to provide detail, assuming, of course, he still works for the client and still recalls the situation.   The opposing lawyer will request the personnel file, and I either volunteer it or leave him speculating that my refusal to share is a sign of weakness.  Now my client has to consider the costs of defending a claim and, most likely, starts debating what it will cost to defend a potential suit.  All because of the lack of quality documentation.

Keep it simple and teach your managers the significance of well written documentation.