You’ve heard it one hundred times; you know it like the back of your hand. If the key in real estate is location, location, location, the key in employment is documentation, documentation… well, you get it. But I know you don’t like it. In working with employers faced with a difficult employment situation, the first thing the attorney wants to see is the documentation. Clients tell me they find this confusing, especially for those who are “at-will” employees because “can’t we fire those employees for any reason or no reason as long as it isn’t an illegal reason?” Of course you can!
However, in a worst case scenario, three years later, what is the jury going to believe: a witness who is now a former employee herself and has a bit of a grudge or a well-documented pile of unemotional paper that was written at the time, detailing the concerns with the employee’s poor performance? Documents are powerful when they tell the employer’s story by showing the employee was given fair notice and an opportunity to improve and didn’t. Documents are often the key to showing a legitimate, non-discriminatory, non-retaliatory reason for the employment action that is later being questioned. Like any good David Letterman top ten list, this one starts with number 10 and is designed to help you think through what, when, and how to document employee performance.
10. Not Knowing the Audience – Workplace feedback usually has two primary purposes: 1) to inform the employee of the concern and exactly what is needed to address it and 2) to create a record that explains the history. As such, the audience is the offending employee and potentially a jury or factfinder. Forgetting either audience will often result in an incorrect tone, style, or clarity. Remember who may immediately and ultimately review the document so you can write it for the intended audience(s).
9. Backdating a Document – There are few things you can say are 100% inadvisable, but this is one of them. Dating a document to look like it was written at a time it wasn’t is dishonest . Instead of changing a date or creating a false date, create a cover sheet that explains what date the document was most likely created and why. Although I would argue honesty is a sufficient reason to never backdate, with today’s technology the chance of getting caught adds even more reason. I don’t pretend to fully understand metadata in electronic communications, but I know it can show what was revised, when, and by whom. Don’t be the person whose user name shows up for backdating!
8. Bad Timing – Unhappy news needs to be delivered thoughtfully. Let’s say a performance evaluation is not very positive. Giving that document to an employee before he gives a big presentation, makes an important sales call, or has an urgent deadline is most likely not going to promote the overall organization goals. However, do not let too much time pass, either. Time when you give documentation by ensuring it is timely but also sensitive.
7. Poorly Performing Performance Evaluations – It feels so good to rate everyone with a “1” for exceptional work. But how many people really deserve it? And how does that leave room for improvement? When a new supervisor comes on board, I often suggest she sit down her team to explain how she views the performance evaluation tool so employees will understand that their formerly glowing reviews are now going to honestly assess areas for improvement and that improvement over time is more valuable to the manager than a review that is initially glowing.
6. Misuse of PIP – A performance improvement plan should be just what it sounds like – a plan to help the employee improve. Now those who have supervised for a while have good gut instincts on who is going to improve and who isn’t. But the goal is not to prognosticate an individual’s success. People can surprise you (oh how they can surprise you) so any plan needs to be written clearly, with achievable goals, realistic deadlines, and steps that will actually help the employee grow.
5. Using Legalese and Jargon – Wherefore thou shall not use superfluous words not necessary to convey thy meaning nor speak laboriously to lengthen the prose while concealing the purpose. Not even lawyers like legalese. Ease up on it and say what you mean in language anyone can understand.
4. Confusing Directives – Be direct in directing employees. Do not lead with language such as “it would be helpful if…” or “please consider…” That is like asking your child, “Do you want to pick up your shoes?” If you do not intend to ask their opinion, give a directive clearly and without cause for hesitation. Make it clear it is not optional. “Turn in all receipts by noon on Thursday.”
3. Using Email Inappropriately – We all know someone who does this. He or she sends an email that conveys content that should be provided in person (or at least over the phone). We know that 93% of communication is non-verbal so all those cues are missed when a writing is delivered without personal contact. Email is so convenient, but it is always worth the reminder that walking to someone’s office or picking up the phone is important and a sign of a compassionate leader.
2. Inconsistent Application of Standards – Equal and fair treatment of all employees can be difficult because some employees are just better at their job, kinder, more interesting, harder working, etc. Employee A is challenging. Employee B is delightful. But if you are going to discipline Employee A for being late, you have to discipline Employee B for being late (unless there are different circumstances, i.e. flat tire). We have seen perfectly defensible job actions overturned when someone is treated differently. Consistency is the key.
1. Not Documenting – Admit it, you knew that was the number one problem, right? Supervisors are busy, they hope an employee will get better without written feedback, they do not like documenting anything unless it is a “big deal,” and they don’t like confrontation. All of those are valid concerns, but they are not sufficient reasons to avoid documenting. Regular documentation establishes expectations, provides feedback, and lays the best groundwork for subsequent employment decisions.
On any given day, I could probably give you a different top ten list of documenting errors. But today, these are the ones I am seeing the most often. I hope this refresher will motivate supervisors to document often and well so that we lawyers can later successfully defend any of your decisions that are challenged. Good luck and happy documenting!