Documenting Problem Employees

Picture this, you call your secretary in your office, she waltzes in. You tell her that she is fired for incompetency and casual attitude. She goes crying outside your office, packs her stuff and leaves. Before leaving, she has slyly put in the word in the office’s gossip-monger’s ears that you fired her because you wanted to replace her with one of your relatives. She is gone, but the word has now spread. Your employees hate you and you don’t have a proof to show that this is not true. You wish you had it, but you don’t. Amongst various issues faced by an employer, this could be one of the most common ones. Effective documentation puts one in a safe position where, if challenged, one can show one’s side of the story. Without a proper document, an employer is vulnerable to strikes from the employees, who may play sympathy card and make you look like a villain and try to deflate your side of the story.

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Usually, serious matters of dispute between employer and employee reach the court. Contemporaneous notes maintained by an employer put up a great legal defense by presenting the facts precisely as they happened, and authoritatively too, thereby, insulating him from various kinds of liabilities towards employee. Such kind of documents, if not maintained properly, have least or no relevance at all in any kind of employee litigation.  If the notes have not been maintained contemporaneously, it puts the employer in a challenging position to prove that such actions even occurred for the reasons mentioned by him. Contemporaneous note making by an employer not only helps in litigation purposes, but also when there are multiple supervisors in an office for one employee, or there is a replacement of the employer. Documentation of performance and behavior of the concerned employee make it easier for all of them to be on the same page.

These notes also help in establishing that no discrimination had taken place against an employee and she/he was not treated any differently from the others. In 2013 case of Margarita Zayas v. Rockford Memorial Hospital, the United States District Court for the Northern District of Illinois ruled a judgment against a former hospital worker who claimed discrimination based on age and national origin. In reality she was fired for repeatedly sending “negative, unprofessional, and disrespectful” emails to her boss and co-workers. The employer had documented the whole event and disciplinary actions taken from the start, right when he had sent out oral and written warnings to her to stop that behavior and had sent her for two counseling sessions with Human Resources Department. He presented these contemporaneous notes before the court, who agreed with the employer based on the evidence and ruled the case in his favor, discarding claims made by the employee of any kind of discrimination. In absence of written and organized documents, the employers are vulnerable to such pitfalls and it may also lead to doubting of the employer’s version of fact as if he is hiding something. Contemporaneous notes are more likely to be accepted in court than faded recollection of what may have happened.

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Now the questions arises that when there is sea of information, what needs to be documented? As a general rule, no documentation is enough. You never know what pieces of information fits in which scenario. Anything that involves an employer’s duties or responsibilities, action undertaken by the employer, including the details and reason behind it or any sort of written communication with employees or supervisor, should find a place in the notes. Anything in writing has lesser probability to be challenged by the problem employee. Documents that should be maintained contemporaneously should be include detailed initial employment records, signed document stating that the employee has full knowledge about the policies of the company, updated documents, training documents, accurate attendance records, performance evaluations, instances of misconducts, disciplinary or counseling action taken against the misconduct, documented proof of changes in designation or location, investigation conducted against an employee or complaints registered against them by colleagues or seniors, medical or disability issues, retirement or termination records.

It is suggested and also learned through experience by employers who had to face litigation that whenever anything noteworthy happens say for instance employee’s misconduct, it should be documented. One should not wait for the case to move to the court and then make documents based on the memories of the event that occurred months ago. If you are not sure what to document and what to leave, just document it, even though it time-consuming and boring. Extra document may never hurt, but the lack of it definitely will. It is always wise to maintain contemporaneous notes in an organized and professional manner. The language should be formal and clear. One should never falsify a document or leave important matters like getting a document signed by the supervisor.

Documentation also helps an employee and employer to know what to expect from each other. If the employee deviates from that, the employer may interrupt by referring to the document and make him aware of his conduct. An employee should only be fired if there is some written notice that puts forward the incompetency in his or her performance. Otherwise, he or she may sue the employer and matters may get ugly. If the documents are up to date, the employee will think before challenging that. It is always advised to makes notes of the problem and time-stamp it so that the timing of the event is known. If the situation was not very severe, the employer needs to mention the disciplinary actions taken by him to salvage the situation and document that too, date-wise. In a recent District of Massachusetts case Akerson v. Pritzker, 2013, the employers had not made any contemporaneous notes about the employment of an employee who sued them that they fired her after learning about her disability and after she took medical leave. The employers vehemently denied that, but had no documents to prove that. The judge said that it is unusual in this era of connectivity that the employer had maintained no documentation, emails or texts even, about its decision to terminate an employee. As a result the decision went clearly in favor of the employee, and the employer had to bear a heavy price. It is recommended to make contemporaneous documentation of discharge decisions, performance deficiency and counseling provided. Relieving an employee of his or her duties is one of the most litigated issue, that whether the discharge decision was made before or after a certain date or event happened. Once such decision was made, did the employer document the decision? An employer should always be agile in that front and can do so by even sending a small email to everyone and then make a note of it in his contemporaneous notes. Similar actions can be taken while documenting the performance issues or disciplinary actions.

No documents once created should be discarded or destroyed, once the matter moves to the court. This document may include, but not be limited to, employment records, correspondence, letters, notes, memos, telephone logs, drawings, diaries, calendars, and other electronic or computerized data compilations, like e-mails. Make sure that all the important documents are safe and not falsified, else it could put an employer, himself, in jeopardy, even if all the documents were ready at his end.

It is common hearing from the employers mouth that the time they could spend constructively in more critical tasks for the company, they have to spend in making these monotonous documents recording the peaks and hills of so many employees. They even put it off for a later time, which eventually never comes. They find it hard to maintain a perfect document, which demands even the smallest of the details. But appropriate documentation is hard and like any other hard thing, this also takes extra time and effort. The usefulness of it is immense as eventually it becomes your strength when someone tries to bring you down by wrongful measures.

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Laner Muchin,. (2014) Employer’s Contemporaneous Documentation of Verbal Counseling Helps It Win Discrimination Lawsuit. Retrieved from, http://www.lanermuchin.com/?t=40&an=28721&format=xml&p=5646

In the United States of Court Appeals for the Seventh Circuit,.(2013-2014). Retrieved from, http://gallery.mailchimp.com/d25e673195fa74ffee298e1a2/files/Zayas.pdf

Documenting Employee Discipline And Performance Issues By Karen Sutherland. Retrieved from, http://www.omwlaw.com/wp-content/uploads/2013/01/Documenting-Employee-Discipline-And-Performance-Issues.pdf

Now +  Next,. (2014) Top five tips for employer documentation in an “age of connectivity”. Retrieved from, http://www.uhlaw.com/files/167071_Employment_Alert_21JAN2014.pdf

Find Law for Legal Professionalism,. (2008) Documenting Employee Discipline: Developing and Implementing  Documentation Procedures To Protect Your Organization. Retrieved from, http://corporate.findlaw.com/law-library/documenting-employee-discipline-developing-and-implementing.html


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