When clients ask us for advice about tricky termination decisions, we routinely ask to see the documentation. Why is that? Well, employees who feel that they were disciplined or terminated without a good reason will look around for a basis for a lawsuit. The bad news for employers is that employees do not have to look very far because everyone is a member of at least one protected class – we’re all male or female or something in between, and gender identity is specifically protected under Massachusetts law. And we’re all a member of a particular race. In Massachusetts, there are twelve protected classes. And then there’s the issue of protected conduct. As a result, it’is important that employers take steps to properly document the legitimate, business-based reasons for their employment decisions.
Generally speaking, employers should be documenting employee problems, conversations about problems, complaints made by employees, actions taken with regard to employees, and any discipline. Employers shouldn’t just document the bad stuff, but should also remember to document when an employee is recognized for performing well and going above and beyond for the organization. Including praise for good performance shows that the employee’s supervisor does not harbor any ill will against the employee, even if later that same supervisor needs to impose discipline.
There are three basics to effective documentation. The documentation must show that the decision is fair, consistent, and supported by legitimate, non-discriminatory, business-based reasons. For example, when disciplining an employee, your documentation should include the facts of the situation; the effect the situation had on the workplace; the standard or policy that the employee violated; whether there were previous incidents involving the employee; what the discipline is (e.g., verbal counseling, suspension, final written warning); and the future consequences of continued violations. This formula highlights the reasons for the discipline in a fair and consistent manner and puts the employee on notice regarding future consequences if the employee again violates company standards and/or policies.
Even if an employee problem is not going to result in disciplinary action, a supervisor should document the facts of the situation, why the issue was a problem, and any conversations with the employee about the issue. You never know when another issue regarding the same employee will arise. You may need to refer to these notes when making future employment decisions about the same employee!
The timeliness of documentation is critical. The longer you wait, the less you remember. As a result, it is important that you document the situation as close in time to the event as possible. And most importantly, be sure to include the date, including the year, and sign the documentation! If you have a form, fill it out completely. Nothing looks worse than a form that’s missing the supervisor’s signature or other key information. By documenting the reasons for your employment decisions, you are creating something tangible that will help to refresh your recollection later about a particular incident or reason for a decision. Carefully drafted documentation can help avoid litigation and can also play a key role when successfully defending employment discrimination lawsuits. So be sure that your supervisors understand when, what, and how to document difficult employee situations.