Careless Documentation: Key Evidence Against You in Court

If you're not careful with your documentation, says Attorney Allison West, you're probably creating evidence that your employee's attorney can use against you in court. In today's Advisor, her do's and don'ts.

Employment law attorneys aren't allowed to say "document," West says; they are always required to say "document, document, document." There's a good reason for using the famous three words, she adds, because documentation is that important:

•It gives you credibility.
•It's how you show the world that you did what you say you did.
•It allows you the opportunity to see your decisions in black and white.
•It shows that you treated employees with fairness and consistency.
•It's Exhibit A when you go to trial.

West, principal at Employment Practices Specialists in Pacifica, California, offered her suggestions at SHRM's annual conference and exhibition, held in Las Vegas.

To move toward better documentation, start by thinking through who will be looking at your documents down the road, says West. It could be a fact finder, an investigator from the EEOC, or a representative of a state agency.

Or it could be a jury. And who sits on a jury? People who will be comparing your behavior to that of their own employer and to what they think is right. ("I had a manager just like that—and now I can get back at him.")

Do's, Don'ts, and Rules for Bulletproof Documentation
West offers the following Do's and Don'ts for documentation.
Do create contemporaneous documents. Do documentation at or around the time something happens. If you wait 3 weeks, it's a little suspect, West says. And if there's no documentation, it's easy for the opposing attorney to beat you back.

Don't ever backdate documents. If you are documenting late, fine, but don't backdate. That will be found out, and you can be picked on and chopped up during cross-examination.

Do include a full date. West notes that if there is no date at all, it's very suspect. Especially under cross-examination, witnesses will find it very hard to state a date with accuracy.

West offered the case of a worker who was terminated during pregnancy leave. The only document to support the company's contention that her termination was part of a RIF was one sheet of paper, lined, yellow, 8 1/2 by 11.The page had three different entries in different colored inks, including one that had the employee's initials. And it had a day and date, but no year.

It's hard to convince anyone that that's a meaningful document. Remember, says West, that when you are in court, this document is going to be there, blown up to the size of New Jersey.

So, she says, do include the full date, and include full names at least once. After that, initials or first names are OK.

Do get the employee's signature. When possible, obtain the employee's signature to verify that you had the discussion. You'd like a way to show that you have shown the document to the person.
Don't use inflammatory phrases. For example:

•I thought someone like you would be above this
•Everyone on the team gets it but you
•You should know better

Be complete and unambiguous. For example, "You'd better turn things around, or else" just doesn't mean much.

Don't make inappropriate conclusions of fact or law. For example, "This is the worst case of harassment I've seen." Or employee Sandy says: 'Chris is making me uncomfortable." Manager documents: "Sandy is being harassed by Chris."

There's side problem with this, says West. Now the employee now thinks: "Oh, I thought I was just uncomfortable, but now I realize I'm being harassed. Hmmm."

The easiest thing to do, West says, is to document the employee's words, and, in conversation, to mirror back employees' words: "I'm sorry it's making you uncomfortable."

Don't use generalities, overstatements, and exaggerations. For example:

•Nothing seems to get through to you.
•You're always late, you don't care about your job.
•It appears you don't care.
These statements are too vague, says West.
Don't use absolute expressions unless completely accurate. For example:

"You are always late." "Actually, I was on time today," the employee will say. This completely takes the wind out of your sails.
"You never volunteer to stay late." "Yes, I did on March 2."

"Always," "every time," "invariably," and similar words cast a negative tone, are not accurate, and suggest bias. Instead, says West, use "often," "typically," etc.

Today's HR Daily Advisor Tip: Attorney Allison West

The Whitford Group, TheWhitfordGroup@aol.com, 704 298-2115