I had a long talk today with a vice president of human resources about the
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
disciplinary forms, evaluations, and other tools of the human resources
Yes, some statutes or regulations may require written documents (some OSHA
example), but you do not have to have a written rule that murdering another
grounds for discipline.
While some states by statute require employees be given the reason or reasons
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
their former employers. Judges and juries have come to expect, even though not
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
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
sexual orientation, or union activities.
It is easier to show that an employee had notice of a rule with written
employer testimony that he was “told” not to bring weapons onto the property. Easier, but not
In extreme cases, employers become so obsessed with documentation that they put
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
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
intended. If there is documentation missing in certain instances, the former
can credibly maintain that the absence of documentation proves that the incident
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
Moreover, you would not expect the plant manager to have a personnel file thick
counseling memos, and in some cases, a thick personnel file could suggest that
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
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
documentation should not be an excuse not to take action, unless you yourself
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
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
was you were hoping to prove someday by putting that piece of paper in there.
like exercise, is best done in moderation.