Documenting Employee Discipline: The Dos and Don ts of Documentation

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1 Documenting Employee Discipline: The Dos and Don ts of Documentation FEATURED FACULTY: Amber M. Spataro, Counsel, Littler

2 Amber M. Spataro, Counsel, Littler Amber has over a decade of experience in all areas of labor and employment law, including employment litigation, advice and counseling, and traditional labor disputes. She has litigated through trial various types of employment discrimination claims, wage and hour claims (including class actions), and other employment related claims (such as breach of contract, defamation, invasion of privacy and unfair competition claims) on behalf of employers in federal and state court at the trial and appellate court levels. Her most recent trial was in October 2010 where, as second chair in a 6 and 1/2 week jury trial in Los Angeles, she secured a defense verdict for the employer on a wrongful termination/retaliation claim brought by the former Vice-President of Human Resources against the company. Amber is Co-Chair of the Labor & Employment Section of the Essex County Bar Association and her advice and counseling experience includes Fortune 500 companies as well as small, five person employers. She has also become a prominent authority in the area of social media in employment. She was a featured speaker on social media in employment at the 49th Annual Corporate Counsel Institute held at Northwestern Law School in September 2010 and was quoted on the topic in Workforce Management magazine in February 2011.

3 **Certificates of attendance and CEUs, when available, must be requested through the online evaluation.** Evaluation for Live Event: We d like to hear what you thought about the audio conference. Please take a moment to fill in the survey located here: Requests for continuing education credits and certificates of attendance must be submitted within 10 days of the live event. Evaluation for CD Recording: Please use the following link to submit your evaluation of the recorded event: Please note: All links are case sensitive Receive 1.25 recertification credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI)! For more information about certification or recertification, please visit the HRCI homepage at "The use of this seal is not an endorsement by the HR Certification Institute of the quality of the program. It means that this program has met the HR Certification Institute's criteria to be preapproved for recertification credit."

4 Bulletproof Documentation Creating Clear, Concise & Legally Air-Tight Write-Ups The Fish Bowl Effect Operate as if third parties may later scrutinize your every move because they will Every word you write or type may, one day, be Exhibit A If it s not written down, it didn t happen! 1

5 The Ouch Factor These genuine s caused significant issues in litigation 2

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7 Why is documentation important? It prevents later denial Aids your memory Minimizes misunderstandings Provides emphasis Reveals patterns Supports future action taken toward that employee Gives your successor a foundation Getting It Right Key Questions Before You Write What is the purpose? Is this an urgent situation? Who is involved? Who will see this document? 4

8 What you need to document EVERYTHING! Formal Discipline Informal Counseling Problems Meetings Incidents Good things? When should you document? Immediately after an incident occurs As often as the problem requires it As part of a regular review process Calendars will help you re-create a timeline 5

9 Who is your audience? The employee about whom the document pertains? Managers/supervisors HR THE JUDGE AND JURY! Types of Documentation Formal Corrective Action Notice Memo Summarizing Verbal Warnings & Directives Handwritten Notes Reports of Investigations Performance Appraisals 6

10 Types of Documentation (cont d) Chronology of Events Notation in calendar or department log books Meeting agendas/minutes Attendance records Telephone records Photographs, videos or other evidence Samples of work errors Getting It Right What should you include? Date, location & time of incident(s) Date of memorandum Detailed description of employee s conduct List of specific examples (current and past) Names of people involved/witnesses Which rule or policy was violated, if any Consequences/discipline and what employee must due to correct behavior What will happen if the behavior continues Objective recording of your observations 7

11 When should the employee get a copy? The Most Common Problems Too many cooks Snide and sarcastic comments Being too nice Retaining drafts Casual dialogue Mixing negative and positive comments Attempting to offer explanations for the employee s conduct 8

12 What not to include! Bad: Jane said he is going to request a leave for his back pain Personal opinions Legal conclusions Hearsay, gossip, rumors Information about a medical condition EEO status (protected categories) References to prior irrelevant history Careful of retaliation claims Examples of Good and Bad Documentation BAD Not a team player GOOD Judy was told to prepare an estimate of costs by August 10. She didn t finish it on time. This prevented others who needed the information from finishing their parts of the budget. 9

13 Examples of Good and Bad Documentation BAD does not fit our image GOOD As a receptionist, Sue is in a public contact position. On four occasions (list dates), she has been orally counseled not to work on her nails at the front desk, not to chew gum while working, and not to color her hair blue. Dropping the Ball... Lack of proper documentation From a jury s perspective, if it is not in writing, it didn t happen. Contemporaneous = increased reliability Some jurors may also be distrustful of documentation that is over the top. Failure to follow-up (if you say you are going to do something, do it!) 10

14 Use Evidence of Specific Problem Written documents such as , reports, memos, notes, past evaluations and letters Meeting agendas and voice mail Photos and videos Calendars 11

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16 Performance Appraisals The Benefits: Opportunity to honestly review performance standards and expectations Written rationale for compensation adjustments Analysis of employee s strengths/weaknesses A vehicle to increase motivation and renew commitments Useful in resolving future issues Performance Appraisals The Process: Upon hire set goals and communicate performance expectations Provide feedback and coaching throughout the year Recap feedback given throughout the year during performance review Reassess goals and expectations, point out issues & problems, renew commitments and plan for future development 13

17 Preparing the Written Performance Evaluation Gather and review documentation from entire review period Review prior evaluations Review job description Preparing the Written Performance Evaluation Focus on factual information and actual job performance, not personality Give specific examples Be honest, concise and logical Avoid vague, technical words or jargon Be mindful of FMLA/ADA when addressing attendance issues Review employee as an individual, but in context and consistently with entire group 14

18 No-No s for Performance Evaluations Unsupported judgments and undocumented generalizations Comments that pertain to protected classifications or activities Changing a review form after it has been discussed with or signed by employee Documenting Investigations Address all issues raised Make a record of your reasoning and steps taken Avoid unnecessary controversial comments State facts, not conclusions of law Set forth consequences/remedies 15

19 Documenting Investigations I said/you said how to document the employee s words Should you get a written statement from the employee or should HR/manager write it up? If so, should employee sign? When should outside counsel be hired to document investigations Solutions Pre-Claim List facts, not opinions Delete drafts & limit copies If reasonable chance of a legal claim: Include counsel Use privilege 16

20 Documenting Disability-Related Issues Confidentiality of medical conditions Separate file Don t document disabilities, document requests for accommodation A Documentation Culture within your Organization HR is your friend Consult early Use their expertise Managers and supervisors must understand this is a job requirement 17

21 Ask Your Managers... Did you ever discipline an employee or give a bad performance appraisal? Was it easier when you documented specifics to support your action? Did you ever fire an employee? Was it easier when the employee had a final warning in his/her file Did you ever have a poor performer improve? Would it have happened without documentation? Did you ever inherit a job from a previous manager? How did they leave the relevant files? Documentation in an Electronic Era Common Evidence in Employment Cases Personnel Files Investigation Records Payroll Databases HR Databases Computers/Home Computers PDAs SIM cards Text and Instant Messages Calendars 18

22 Documentation in an Electronic Era Litigation Landmines Informality Joking No one will ever see this Questions? Eboneé Hamilton Lewis, Esq. Littler Mendelson, P.C. One Newark Center, 8 th Floor Newark, NJ [email protected] 19

23 THANK YOU 20