5 Things Fact Finders Expect from Your Documentation

When you document, you’re not writing just for the moment, says Fentin. The following parties will eventually be looking at your documentation:

• Employee
• Opposing counsel
• Administrative agencies—the EEOC or state deferral agency
• Judge
• Jury

Fentin, who is a partner at Skoler, Abbott & Presser, P.C., in Springfield, Massachusetts, offered her documentation tips during a recent webcast sponsored by BLR® and HR Hero®.

What Do These Audiences Expect?

These audiences expect five things of your documentation. Be certain to be:

• Professional
• Clear
• Fair
• Rational
• Timely

Fentin takes a closer look at each quality.

Be professional

• Complete sentences and good grammar
• Appropriate punctuation
• All the blanks filled in

Every piece of documentation should be something you would be willing to read on the witness stand, in front of a jury.

Also, of course, file it where you can find it, adds Fentin.

Be clear

• Easily understood (the reader could be knowledgeable, but could be a jury member)
• Brief and to the point
• Containing facts:
• A rule that was broken
• Employer’s expectations
• How employee failed to meet those expectations
• Prior counseling or discipline
• Consequences
• Future consequences if employee fails to make required improvement

Be fair

Whether the law requires it or not, juries will look for fairness.

• Honest—no speculation. If the supervisor tries to be other than honest, it will catch up with you.
• Follows company policy and procedure. What rule, and why it is important.
• No piling on —prior offenses should be included only if relevant and timely.
• Disciplinary consequences should be appropriate to the misconduct.
• Consistent discipline for similar offenses (Investigators will ask for examples of similar situations.)
• Includes a space for employee comments. It feels fair. If the employee does not attribute the situation to his or her protected class at this time, that’s good for the defense if the person later does bring that into the picture. (If the person does bring up protected class, pursue it. Why do you feel that way?)
• Detail steps necessary to achieve desired results and how supervisor will assist, if appropriate.
• Set a reasonable time frame for corrections, if appropriate.

Be rational

Articulate the business-based reason for the decision. If necessary, let people see your reasoning. “Not a good team member” is not enough, says Fentin. Give concrete examples—does not respond to e-mail; displays a negative attitude in meetings; rolls eyes when I am giving instructions.

Observations are job‐related and use objective criteria. Your position is supported with:

• Handbook language/policy and
• Specific examples.

Be timely

A delay in documenting undermines the legitimate reason for action, says Fentin. Delayed documentation looks suspicious and is very problematic. Managers say, “I had a real good reason for doing this, but I didn’t write it down. Can I write it now?”

Yes, says Fentin, but how does it look, writing it right after the charge is filed? Documentation after a claim appears pretextual.

Your documentation is vital to compliance, but there are also other ways to boost ethical behavior at your company, such as anonymous ethics helplines. Recent benchmark data show that company reporting systems are rooting out noncompliance issues—for example, retaliation reports are up 125% since 2013!

Source: HR Daily Adviser