One of the most effective ways an employer can shield itself from liability when faced with an allegation of discrimination is to be able to support the legitimacy of the challenged employment decision with documentation. While this advice may sound simple and obvious, all too often an employee’s personnel file fails to show his history of poor performance or record of repeated unexcused absences that led to his termination, creating an uphill battle when it comes to defending against claims that gender, race, religion, disability, or age was the real reason for the discharge.
So what sort of things should we be writing down?
First, performance problems . If you notice an employee is developing a habit of submitting subpar work, turning in assignments late, or just generally slacking off on the job, be sure to take note of the problem, bring it to her attention, and document the fact that you discussed the problem with her. Doing that will detract from her credibility if she later tries to allege that her termination simply couldn’t be related to her performance because she was never counseled about deficient work.
Second, misconduct, workplace rule violations, and employee disputes. Anytime you observe workplace misconduct or receive a report of it, jot it down. If the incident involves a violation of a specific policy or rule, be sure to refer to the provision in your notation. Even if the infraction doesn’t warrant discipline or the dispute seems only petty or trivial, a record of repeated disciplinary problems may show a pattern of behavior that justifies taking adverse action.
Finally, absenteeism and tardiness. Keeping accurate attendance records is important for numerous reasons. In addition to maintaining compliance with the Family and Medical Leave Act (FMLA), you will have a crucial defense if you find yourself defending a lawsuit by an employee whose poor attendance spurred a disciplinary action or termination decision. It’s much more persuasive when a supervisor or HR manager can precisely point to dates on a calendar rather than generally testify that the employee was “absent a lot” or had “problems getting to work on time.” Thus, all absences, excused or unexcused, should be consistently recorded. Similarly, instances of tardiness should be documented. Attendance records should be kept for every employee, not just those who have a problem with absenteeism.
When and how should documentation be done? If the documentation involves poor performance or attendance issues, a concise memo in the employee’s personnel file or a notation on your calendar will often do the trick. If the documentation involves misconduct, rule violations, or employee disputes, the record you draft should provide a detailed account of the incident and identify the employees involved as well as any eyewitnesses.
The documentation should provide an objective account of the relevant incident. Therefore, stick to the facts, and avoid any temptation to embellish or exaggerate. Similarly, avoid inserting personal opinions that may not be supported by the facts. Documentation need not be lengthy; however, to serve its purpose, it should be sufficiently detailed to allow someone without any firsthand knowledge of the incident to be able to ascertain what occurred simply from reading your account of the facts.
Ideally, documentation should be done as soon after the incident as practicable, when the details are still fresh in your mind. However, if an incident causes your temper to flare or emotions to run high, be sure to wait until your anger or frustration subsides before putting pen to paper. Finally, be sure to date the document and identify yourself as the author somewhere on the record.
Employee evaluations―make them count
Employers aren’t required by law to conduct employee performance evaluations. That being said, it’s amazing how many employers implement employee evaluations but then seem to merely “go through the motions” when grading their employees’ performance, treating the process like a chore or obligation. Often, conducting performance reviews with that mindset actually ends up hurting the employer’s ability to defend discrimination or wrongful discharge lawsuits. To avoid that predicament, keep these guidelines in mind when conducting performance appraisals:
- Be honest. While it may be difficult or uncomfortable to address an employee’s performance issues, failing to do it in a performance evaluation defeats the entire purpose of even having a review process.
- Be comprehensive. A performance evaluation need not focus solely on an employee’s weaknesses. Take the time to also document areas of strength for each employee. That will allow your review process to be viewed as a time for constructive criticism rather than just an opportunity to criticize.
- Be accurate. Avoid being too generous or overinflating an employee’s performance. Likewise, avoid lumping all employees under the category of “meets all expectations.” If it’s warranted, don’t be afraid to identify an employee as above or below average. Again, while it may be difficult to discuss an employee’s subpar performance with him, think of how much more difficult it will be to try to explain to a jury why you decided to terminate the employee for performance issues when you consistently rated him as meeting or exceeding all expectations.
- Be specific. Avoid generalities like “work harder” or “improve quality of work product.” Spell out exactly where the employee’s performance is weak. Be sure to evaluate both quality and quantity, and if appropriate, include specific examples of excellent or poor performance. If your company uses an evaluation form that contains numeric scoring but also allows for written feedback, be sure to take the time to explain your rating of the employee’s performance.
- Evaluate performance, not personality. It’s crucial that your personal feelings about particular employees don’t influence performance appraisals. Performance should be evaluated based on objective measurable criteria. That isn’t to say, however, that if weak performance is due to personality issues (e.g., an inability to work well with others in a team environment), you shouldn’t address those issues in a review. To the contrary, personality issues that affect performance should certainly be documented and brought to the offending employee’s attention.
- Provide deadlines. If improved performance is recommended, be sure to set forth a timeline for improvement.
Rarely is an employment discrimination lawsuit supported by direct evidence of discriminatory intent. Rather, in the absence of a “smoking gun,” the majority of cases are supported by circumstantial evidence. It’s no secret that juries like documents. The last thing you want to happen is for your records and evaluations to come back to haunt you. By making it a habit to contemporaneously document workplace issues and prepare accurate, honest employee performance evaluations, you’ll have a solid defense with a paper trail that works to your benefit and speaks for itself.
About: West Virginia Employment Law Letter:|
Excerpted from West Virginia Employment Law Letter and written by attorneys at the law firm of Steptoe & Johnson PLLC. WEST VIRGINIA EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. The State Bar of West Virginia does not certify specialists in the law, and we do not claim certification in any listed area. For further information about the content of this article, please contact any of the attorneys at Steptoe & Johnson PLLC.