Documentation is armor against labor law litigation. “No matter what type of employment litigation is at issue, the amount of documentation an employer has dramatically increases the odds of prevailing in litigation,” writes litigation attorney Anthony Zaller in a blog post.
Surprisingly, however, many employers neglect creating and retaining documentation outside of records specifically mandated by law (e.g., payroll records). That means documents related to areas like employee performance can be thin. And given that performance management techniques are rapidly evolving and becoming more frequent and more casual, the likelihood of inadequate formal documentation of these exchanges is increasing.
It’s critical to document any interaction in which the employer discusses performance issues with an employee. That documentation needs to cover:
1. Everyone must be clear about what expectations have been set for the employee.
2. If the employee falls below that threshold, the employee and his manager(s) should formulate a written action plan to get back on track, complete with deadlines and performance metrics.
3. The documentation should incorporate everyone’s explanations, including the employee’s own.
· Be detailed and specific. Generalities leave too much open to interpretation and are too ambiguous to be helpful to the employee. For example, say “by Friday at 5 p.m.”, not “soon.”
· Be comprehensive and include positive feedback. Documentation should be fair to the employee. That means, in addition to grievances, complaints, disciplinary notices, incident reports, etc., records should also incorporate praise from peers and customers, awards, notable achievements, etc.
· Set achievable, objective performance metrics. Unrealistic goals or standards will just create a setup-to-fail scenario. In Xin Lui v. Amway Corp., a federal appellate court wrote, “Where termination decisions rely on subjective evaluations, careful analysis of possible impermissible motivations is warranted because such evaluations are particularly ‘susceptible of abuse and more likely to mask pretext.’”
· Solicit and incorporate employee input. Documenting performance reviews should not be about “building a case” against the employee but about facilitating future success. Attorney Allison West says that documentation isn’t just to protect the employer but “to help someone be successful.”
CoAdvantage, one of the nation’s largest Professional Employer Organizations (PEOs), helps small to mid-sized companies with HR administration, benefits, payroll, and compliance. To learn more about our ability to create a strategic HR function in your business that drives business growth potential, contact us today.