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National Clothesline
National Clothesline
Getting documentation “just right”
I had a long talk today with a vice president of human resources about the subject of
“documentation.”
We were discussing the termination of a
high level executive over a series of public
outbursts, and she was concerned that the
outbursts had not been “documented.”
I felt compelled to give her a lecture on
documentation, and I thought it would make a
good topic for an article.
While it is a good practice, written
documentation is not legally required to justify
discipline or discharge, or to prove that misconduct occurred. Prior warnings, while helpful, are
not legally required, written or otherwise.
It is theoretically possible to run an organization without a written handbook or rules,
disciplinary forms, evaluations, and other tools of the human resources profession.
Yes, some statutes or regulations may require written documents (some OSHA regulations for
example), but you do not have to have a written rule that murdering another employee is
grounds for discipline.
While some states by statute require employees be given the reason or reasons for their
termination, those states are in the minority. So why all this emphasis on “documentation?”
The reason documentation is a good practice is because former employees frequently sue
their former employers. Judges and juries have come to expect, even though not legally
required, there to be written rules of the workplace, as well as notice to employees that certain
conduct will get them in trouble.
Because employees lie on the witness stand, written documentation is useful in rebutting the
employee’s sworn testimony that he was never told that bringing a loaded weapon onto the
premises was prohibited, and that the real reason for his termination was his age, disability,
sexual orientation, or union activities.
It is easier to show that an employee had notice of a rule with written documentation than
employer testimony that he was “told” not to bring weapons onto the property. Easier, but not
foolproof.
In extreme cases, employers become so obsessed with documentation that they put a memo
in the personnel file every time they talk to an employee about anything. Personally, if I knew
every conversation I was having with my employer was being documented in my personnel file,
I would do everything in my power to leave such an organization.
Good employees resent such overkill, and it can even have the opposite effect to what was
intended. If there is documentation missing in certain instances, the former employee’s lawyer
can credibly maintain that the absence of documentation proves that the incident was not
important. Documentation, to be effective, must be like Goldilocks’ bed — not too hard, not too
soft, but “just right.”
Getting back to my talk with the HR VP today, I told her that the need for documentation as a
good practice decreases the higher the position of the “target” employee. I told her that
documentation of counseling and discipline is fine for rank and file employees, but for a senior
level official, I prefer undocumented counseling and warnings.
The more an employee is being paid, the more you can justify discipline for reasons such as
“the president has lost confidence in your ability to manage your department.” Examples of poor
management are actually sufficient to support termination, where a termination of a rank and
file employee might be better supported with production numbers, lateness, and absenteeism.
Moreover, you would not expect the plant manager to have a personnel file thick with
counseling memos, and in some cases, a thick personnel file could suggest that the employer
was “out to get” the manager. Too much documentation, like too little, opens the door to lawyer
tricks during litigation.
This does not mean that employees should not be told the reasons for their terminations.
They should. Otherwise, you could fall into the trap of an employee asserting that he was the
victim of illegal discrimination because he was not given any reason.
Employers should never be afraid of stating a good business reason for discipline. And while
written documentation of a termination might not be required, employers should never be afraid
to state in a written termination exactly why the employee was fired. Even if the reasons are
secret now, they will not be secret once the former employee files for unemployment, files a
charge of discrimination, or files a lawsuit.
Documentation, properly managed, has its place in human resources. The lack of written
documentation should not be an excuse not to take action, unless you yourself believe that
performance might improve if the employee were given such written documentation.
Bad employees should not be allowed to remain merely because their personnel file is thin.
But documentation, like a receipt at a donut shop, can be meaningless if it is not managed
properly. Every time I get a receipt for a cup of coffee or a donut, I think, “What are the odds I
will have to prove later today that I bought a donut?”
Don’t put documentation in a personnel file that may make a judge or jury wonder what it
was you were hoping to prove someday by putting that piece of paper in there. Documentation,
like exercise, is best done in moderation.

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Frank Kollman is a partner in the law firm of Kollman & Saucier
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