Every job applicant who enters your business, every employee you ever hired and every employee who left your organization represents a lawsuit waiting to happen. YIKES! Why would I say such a thing? In difficult economic times, or difficult personal situations, a person might believe he or she experienced discrimination, harassment, or retaliation at their job and may be looking for money or just revenge.
“What you do and say today must be done with a view toward what you would say if ever called to testify before a jury.” —Allan L. Rolnick, attorney & author
Survey Says….
A recent survey of jurors in employment cases found the following attitudes:
- 59% had a bad experience with their employer
- 30% had been fired or laid off
- 68% said they would rule in favor of an employee who had been unfairly treated, regardless of the law
- 45% said it was their responsibility to send a message to the employer who had done something wrong
So, barring such attitudes by jurors, realistically you never win an employee lawsuit – even when the verdict is in your favor. From Day One during the process, you have lost valuable time and significant financial resources, not to mention the emotional drain and possible employee disengagement and turnover.
If the facts of a situation are in dispute, great weight is often given to written documentation in resolving the dispute. Records of corrective action are not admissible in court unless you can prove they were made at the time of the incident. You cannot go back and create documentation once an action has been filed.
Best practice is to establish a format for written documentation and train managers to get into the habit of documenting incidents as they occur. This demonstrates a consistent management response to given circumstances (rather than each supervisor determining the suitability of the action) and increases the likelihood of making consistent and defensible employment decisions.
Remember the 3 D’s: Document, Document, Document.
If it isn’t Documented, It Didn’t Happen!
But bad documentation is worse than no documentation at all. The content of the paper trail is key, and includes your choice of wording.
Caution: SEVEN Problem Areas
- Personal Opinions and Biases – Be objective and keep to the facts of what, when, where, who and why. Refer to the policy that was violated and how the employee violated the policy by his behavior.
- Poor Choice of Words – Be careful here that you don’t generalize or use words like “lack of commitment” or “you don’t try” – what does that mean exactly? Use words that say exactly what you mean –“on three occasions you were requested to join a new project team and each time you declined without providing an explanation.”
- Omissions – Failing to include relevant information such as the number of times or dates that the employee was absent or late for work, in violation of the attendance policy.
- “Attitudes” – Using labels that really don’t clarify why the employee is being disciplined only creates defensiveness on the part of the employee. Saying she has a “bad attitude” really does nothing to support the supervisor’s decision – instead “Mary denied responsibility for her failure to meet the deadline, blaming others instead.”
- Unbalanced, slanted, or inaccurate information – Stick to the facts of the situation. Don’t bring personal biases that you or the employee’s coworkers may hold against the employee – “you were drunk again,” “you were sick again.” Instead, “two of your coworkers reported your breath smelled of bourbon.” “You were out sick, Thursday, Friday and again today (Monday).
- Unsigned, incomplete or undated documentation – Such documentation is pretty much useless. There is no way to validate the contents and who actually prepared the report and when it was prepared.
- Unclear consequences – this is very important. If this is a final warning, say that. Don’t leave room for the employee to assume his job is not in jeopardy. State something like, “If improvement in your attendance is not shown in the next 30 days, you will be subject to immediate discharge without further warning.” Or, “continued failure to demonstrate improvement may lead to further discipline, up to and including immediate discharge,”
Help is on the Way….
I have encountered a template that really supports good documentation – it really is as easy as following the bouncing ball. Just keep this in mind when writing counseling memos, other disciplinary related actions:
FOSA+
F = Facts to define the problem (what, when, where, who and why)
O = Objectives to explain how to correct the problem
S = Solutions to help reach the objective
A = Actions to be taken if the problem is not resolved (you MUST let the employee know if his job is in jeopardy)
+ = Your efforts to help the employee succeed
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