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A key element in any trial is convincing the judge or jury that your side is honest, fair and reasonable. However, those are qualities you have to show people; they are not going to believe you have them just because you say so. Hugging a puppy while helping your grandmother across the street, singing hymns and draping yourself in the American flag is one way to go. It's a little transparent though, especially in these cynical times.
The way you document employment matters can do your talking for you. It can show exactly what you want to prove:
We are fair.
We are reasonable.
The employee chose his own fate.
I. THE IMPORTANCE OF GOOD DOCUMENTATION.
A. Why Document at All?
Employment trial lawyers' beliefs about good documentation resemble emergency room personnel's beliefs about motorcycle helmets; we believe in them because we've seen what happens when you go without them. It's a mess.
From a litigation standpoint, good documentation is important because of one fundamental rule of human nature; people believe what they can see more than they believe what you tell them you remember. In a "he says/she says" situation, a contemporaneous document gives a judge or juror something tangible to focus on and believe.
Good documentation can thus help win lawsuits. Even more importantly, it can help prevent them. A potential plaintiff who has to overcome not just a conflict in testimony but unfavorable documentary evidence is less likely to go to war in the first place. Your employee might start out wagging his finger at you and saying, "I want you to listen to me. I am going to say this again: I did not go on important sales calls dressed in women's clothing."
That tune will change when you pull out your memo recording a customer's complaint that he showed up in a blue cocktail dress from The Gap.
Documents might not be as good as DNA evidence, but proper performance documentation can nonetheless be very formidable. However, competent documentation also carries benefits unrelated to litigation. It can help your organization make more informed personnel decisions, ensure clear communication with your employees and improve continuity despite turnover in your supervisory ranks. It can do more than help you look fair and reasonable; it can help you actually be that way.
B. Does that Mean Any Documentation is Better than None?
No. Remember, the whole point of documents is that they may be believed more than testimony. That's great if your documents show fairness on your part and objective failure to perform on your employee's part. Not so great if they make you look arbitrary and biased. If you're claiming that there was a longstanding pattern of a type of misconduct and your records don't reflect that misconduct at all, that's a serious problem. Documents which contain careless statements and/or which are improperly distributed can even lead to separate claims, such as defamation.
C. So What Separates Good Documentation from Bad?
Effective documentation may take many forms, but should always reflect the following considerations.
1. Write it Up Soon.
The inherent credibility of documents stems largely from their contemporaneity; the document reflects the author's assessment of the facts soon after they occurred, which is probably more reliable than someone's recollection months or years later. Employment documentation should be created soon after the event being documented. Your document should reflect its date and author.
2. Just the Facts.
Remember, the primary goal of employment documentation is to show the employer's fairness and objectivity. When describing incidents or problems, stick to the facts. Don't characterize them and don't draw conclusions.
The Melvilles among you might describe your fishing trip with pages of glowing prose filled with metaphors and descriptions that tap into the reader's deepest sense memories. The Hemingways among you would favor "the fish was big." Even that's too much editorializing.
Skip the adverbs and adjectives, and this is no place for hyperbole or argument. Just tell who, what, where and when. Even if you are the ultimate decision maker, all you are doing here is recording data which will be used to make a decision. To the extent that you rely on what others see or tell you, verify your description of events with them and have them confirm (preferably in writing) the accuracy of your account.
"You are a menace to the safety of everyone and everything within your path" may sum things up nicely, but that's not the goal here. Go with "On February 12, 1999, you passed out drunk while smoking next to an open propane valve" instead. Let the judge or the jury reach the obvious conclusion and come up with the funny line.
3. Remember the Ultimate Audience.
Keep in mind that your records may be reviewed by a judge or jury. They probably won't know your business, and will definitely be trying to draw their own conclusions about what happened. Write clearly and avoid unnecessary technical jargon.
4. Your File is not Your Junk Drawer.
Only keep what you want to be the "official record." You can't screen documents once a claim arises; everything you've retained will probably be subject to discovery by the other side. Don't keep preliminary drafts, random notes or anything else that you haven't given appropriate consideration as a worthy employment record. A handwritten item on a napkin is acceptable if it meets the goals of clarity and shows fairness and reasonability.
II. DISCIPLINE DOCUMENTATION
1. Lay Out the Facts.
What facts are causing you to warn or discipline the employee? Again, just the facts.
2. Give a Direction.
State clearly and unequivocally what is expected of the employee after the warning. "You are directed to…," or "In the future you must…" The whole point of making this record is creating clear accountability and establishing that the employee received straightforward instructions which, if followed, would lead to a resolution of the problem. If you've done this correctly, the only conclusion will be that you did everything you could and the employee just refused to help himself.
If you decide to offer suggestions on how to achieve your direction, that's fine. Make sure statements like "you might try…" or "you could…" are made in addition to the clearly stated direction to remedy a problem.
3. Identify Consequences for Failure to Meet Direction.
Your record should make clear that a failure to achieve your direction will have consequences. If the employee is at the "last straw" stage, say so. Again, the goal is to compel the conclusion that your employee knew exactly what was expected and that he would be fired if he didn't perform, and in effect chose his own termination by failing to perform. You don't necessarily have to commit to a single course of action, but the existence of future adverse consequences up to and including discharge should be made clear.
III. INCIDENT RECORD
1. Unbiased Recital of the Facts.
The only goal with this item is to make a record of what happened. Who, what, where, when, and that's all. If you're recounting facts witnessed by another, confirm with that witness your description of the facts.
2. Restriction of Scope
Under no circumstances should this turn into a listing of all grievances against your employee. You're just making a record of something that happened for the benefit of yourself and future supervisors.
IV. PERFORMANCE REVIEW
1. This is no place for "Minnesota Nice" or "Grade Inflation"
Everyone instructing here today has advised an employer who's had enough of a problem employee and is ready to let him go for cause, only to review the employee's file and see it filled with favorable annual reviews. "He was horrible, but we didn't want to hurt his feelings" won't persuade many jurors. If you're not going to be serious about reviews, it's better not to do them at all.
2. Have clear and meaningful rankings.
We've all taken surveys with five or more possible responses and agonized (well, maybe not agonized, but been annoyed) over the lack of difference between "satisfied" and "very satisfied." If an employment record fails to convey readily clear information, it's a waste and a potential liability to you. Rankings such as "not meeting requirements" and "exceeding requirements" are more clear. Watch out though. Terms like "satisfactory" and "meeting expectations" may sound tepid in an era where an A-minus is the average grade. However, such terms mean that the employee is performing in a manner which does not at all jeopardize continued employment. Don't say it if you don't mean it. These days, parents and kids are threatening to sue schools for the emotional distress inflicted by a B-plus. Your reviews should adhere to the standards of the good old days when grades were measurements and not tools for building self-esteem.
3. If Raises Aren't Merit-Based, Don't Connect them With Reviews.
There's nothing wrong with giving raises based on length of service alone, if that's what you want to do. However, when such raises are timed along with reviews, then the raise itself starts to look like a favorable review. I favor keeping them separate, perhaps doing one on the employment anniversary and the other at year-end.
4. New Expectations Require Fair Warning.
The "new sheriff in town" needs to communicate new expectations and/or a new approach to the review process. Again, our goal is the conclusion that the employee got fair warning of all standards and expectations.
V. REASONS FOR DISCHARGE
1. Required by Minnesota Statutes § 181.933.
By Minnesota statute, discharged employees are entitled to a written statement of the true reason for their termination if they make a written request within 15 days of termination. You have 10 working days to give it to them. The statute gives the employer immunity from defamation liability for the response.
2. Just the Facts
Stick to the facts in responding to these requests. As with your other records, avoid broad characterizations and objectively and briefly recount the facts leading to the discharge.
3. This is No Time to Create Reasons.
Remember, most employees are employees at will. If you've exercised your right to terminate for anything other than an illegal reason, say so. If it's a reduction in force, say so. There's no need to defensively come up with "good cause" unless it was actually present. If you've exercised discretion, say so.
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For more information on handling Employment and Labor Law issues, contact
Kathy S. Bray, ksb@hanftlaw.com or 218-722-4766.
The information provided in this article is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this article.
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Copyright 2004 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218-722-4766; fax 218-529-2401.
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