Employee Performance Documentation: Dos/Don’ts to Withstand Legal Challenges

By Gregory Tumolo | Most human resource professionals can recite from memory the so-called “Golden Rule” of HR—DOCUMENT EVERYTHING!  However, many managers and HR professionals involved in performance management and progressive discipline processes don’t know when to create HR documentation, how to create it, or why they create it in the first instance.  This is a real problem.

Courts consistently have found that an employer’s failure to follow its own policies and procedures when documenting performance and conduct issues may give rise to an inference that the employer’s actions were motivated by discriminatory or retaliatory intent.

Below are some best practices for crafting HR documentation that will withstand scrutiny from plaintiff’s counsel and the courts:

  1. Create documentation contemporaneously to the events being described. At a minimum, the time, place, and participants in a meeting or conversation should be included.  Documentation should never be backdated or created in response to a threatened or pending claim.
  1. Avoid overly broad statements of fact (e.g. “always,” “never,” “invariably”) and empty words and phrases that are not sufficiently descriptive (e.g. “insubordinate,” “weak,” “failing”). A creative plaintiff counsel will find ways to use these word choices against you.
  1. Avoid “reg flag” terms that suggest that a personnel action was based on an employee’s membership in a legally protected class. For example, describing a female employee as “shrill” or “emotional” or an employee over the age of 40 as “rigid” or “set in his ways” may indicate that a gender- or age-based stereotype played a role in your decision-making.
  1. Avoid stating legal conclusions. Instead of stating that a manager “sexually harassed” a subordinate or that the department was a “hostile environment” for an employee, you should state that the conduct in question was in violation of the employer’s policies regarding harassment.
  1. Use objective rather than subjective criteria when describing conduct or performance issues. Stick to the facts and avoid statements of opinion.
  1. Provide concrete examples of conduct or performance issues. Providing employees with specific examples of how their conduct or performance issues affect customers or co-workers is effective.
  1. Gather all relevant facts before making a decision—particularly a decision involving an adverse employment action (e.g. discipline, termination of employment). Take the time to find out why conduct and/or performance expectations are not being met.  Not only does this show that you attempted to be fair and reasonable, you may be surprised by what you learn.  For example, you may discover that an employee needs a reasonable accommodation or a job-protected leave.
  1. Include a detailed action plan. Employees need to know what steps they need to take to meet your expectations.  Whenever possible, avoid vague expressions of time for the employee to make any necessary improvements (e.g. “as soon as possible,” “to my satisfaction”).

When HR documentation is crafted with these best practices in mind, it serves several important purposes.  First, it establishes the credibility of your organization.  Employees see that others are treated fairly and consistently.

Second, HR documentation serves a critical role in risk reduction by establishing a written record of personnel actions taken and the reasons why.  HR documentation may illustrate that your termination decision was made for a legitimate, non-discriminatory reason or that you took prompt and appropriate steps to investigate and remediate unlawful harassment.

Third, HR documentation puts employees on notice of their conduct and/or performance issues.  By letting employees know where they stand and what is expected of them, your decision to impose discipline or terminate the employment relationship will not come as a surprise.

To ensure that your HR documentation does not inadvertently create legal exposure for you and your organization, contact Gregory Tumolo, Senior Counsel and Chair of the Employment Law Practice Group at Duffy & Sweeney, LTD.