May 1 Tip of the Week
“Best Practices in Employee Documentation”
“If a tree falls in the forest and no one is there to hear it, does it make a sound?” We all have heard some variation on this question. The principles that are involved in the tree question are applicable to the human resources world as well. The “tree falls” adage stands for the idea that unheard ideas or thoughts are not effective means of communication. If we want to get our point across, it is important to be direct and – pardon the pun – not beat around the bush. What does this mean for human resources professionals? Employee documentation is key in charting an employee’s journey in the workplace and in establishing whether they are effective in their roles.
Anyone who has ever wanted to terminate an employee and has asked for a legal opinion as to whether termination is appropriate in a specific situation will get some variation of the answer – “it depends, what documentation do you have?” When deciding to terminate an employee, an employer needs to ensure that they have taken appropriate steps to document the business reasons for the termination. This is essential so that the employer can be prepared to defend themselves against any wrongful termination claim an employee can make. While an employer cannot prohibit or prevent an employee from filing such a claim, an employer can ensure that they are in the best position to defend and defeat the claim once it is filed. Proper documentation is the key to protecting the employer from liability as a result of the decision to terminate.
What are some best practices in employee documentation?
- Documentation needs to be timely and thorough
Termination letters are generally not required in most states and, in reality, a termination letter is too late to provide the feedback and justification for the decision to terminate an employee. Instead, documentation needs to be ongoing and consistent throughout the employee’s tenure in the workplace and should include disciplinary actions, performance appraisals, and other objective information about the employee’s performance.
- Documentation must be clear, direct, and objective
When documenting employee performance, whether it be performance concerns or positive accolades, be direct and factual. Avoid characterizing behaviors or attributing reasons for the employee’s actions. Your documentation should be clear, concise, and factual. It should not be apologetic or provide excuses for the employee’s failure to meet standards.
- Provide employees with clear expectations
This is key to ensuring that employees understand what is expected of them and, when presented with constructive feedback, can understand why they are missing the mark. It is hard to hold employees accountable when an employee does not know what is expected of them. These expectations should be found in the employee’s job description and in performance evaluations. They should also be included in any disciplinary notices, so that the employee knows what is needed to overcome the concerns raised in the discipline.
- Documentation should build on itself
If an employee has a history of problems, that history should be included in each disciplinary notice or performance evaluation. If the problems continue to persist, the history is helpful to show that the employee is resistant to change and is unable to improve their behavior despite several opportunities to do so. If the performance improves, it is important to note that as well because it shows that the employee’s issues may not be their attitude but their capacity. It also shows the employer’s commitment to work with the employee to improve their performance, which will help to discredit an employee’s allegation of discrimination. Some improvement but continued problems may indicate a need for training or education.
When addressing the poor performance and inappropriate behavior of an employee, it is important that a manager or supervisor does so in an objective and dispassionate manner. The biggest mistake employers can make is to allow an employee to get away with poor performance or inappropriate conduct for a period of time and then reach their tolerance limit for the employee and terminate the employee without having documented the prior issues or establishing that the employee was informed that they were not meeting expectations. Those situations, which are driven by frustration, present the greatest risk of liability when a claim for wrongful termination is filed.
myHRcounsel can assist you in developing job descriptions, performance evaluation procedures, and other policies to properly document and address employee job performance. We can also assist you in dealing with problem employee situations in a way that minimizes your risk of liability.