Documentation, so essential in many court proceedings, often fails to prove the desired point. More often than not, says Marcia Keegan, it is because of the most basic reasons. Keegan, who presented her tips at a recent Connecticut Business and Industry Association Conference in Cromwell, Connecticut, is a partner with Wiggin & Dana of Hartford, Conn.

Poor documentation can be worse than no documentation at all, says Keegan. Here are her top reasons why documentation fails.

Unsigned and/or undated

Foremost among the reasons for failure is ignoring the basic formalities. Undated and unsigned documents have little value, yet many of the documents Keegan sees lack these basic elements.

Illegible

Hastily scrawled notes will be difficult to decipher a year or two after they were written.

Delayed

Waiting to document is another poor practice. Documentation written at the time of the incident is more believable than documentation created later in preparation for a court hearing.

Inaccurate

Carelessness sinks a good many documents, says Keegan. If there are any inaccuracies in the document, the accuracy of the whole document is called into question.

Not specific

You must think through the eyes of a third party reading your documentation. For example, says Keegan, "talked to Mike about his behavior" is too vague to mean much to a third party. A jury will wonder if the behavior you talked to Mike about good or bad. Was it related to the current behavior that´s causing a problem? There´s no way to tell. Keegan notes that many documents refer to "this incident" but provide no details. Or they may say, "Tim´s always late." Again, too vague, says Keegan. Write down the actual dates Tim was late and by how many minutes.

Reaching conclusions without support

For example, "The employee was drunk." This statement alone, unsupported by facts, will not be very useful. Note the behaviors you witnessed, such as, "the employee stumbled, slurred words, was loud and verbally abusive, and smelled of alcohol." Another example: "Sue´s lazy." Write down the facts to support the conclusion. "It takes Sue eight hours to do the work that others do in two hours."

Making indirect statements

Sometimes, in an effort to be nice to employees, especially well-liked employees, the supervisor or manager tries an indirect statement. For example, "Mike''s work could be improved." The jury wonders, "Was Mike´s work ´OK´ work that could be improved to ´excellent,´ or was it unacceptable work that would appropriately lead to discipline?" Your document should make that clear.

Softening the blow

Similarly, managers often try to find a pleasant way to deliver difficult performance information. In so doing, they often compromise their efforts. For example, the performance review says, "You´ve missed some important deadlines. I know we´re understaffed and we''ve been really busy, but we all need to pull together to meet these deadlines." This softly-stated criticism makes the jury wonder, "Was it the employee´s fault that the deadlines were missed, or were things so hectic that it was unreasonable to expect anyone to meet deadlines?"

Not the whole truth

Sometimes documentation only mentions one reason for termination, when in fact there were several. If they all were taken into account in the decision to terminate, they must all be on the documentation at termination. You get into trouble, says Keegan, when you try to add on new reasons at the trial.

Stating ´harmless´ untruths

A step beyond softening the blow is making false statements "for the sake of the employee." Even though you think you´re doing something nice, you are falsifying a document.

For example, you fire someone for cause, but you say the reason for termination is "restructuring" or "lack of work." You have made a false statement, although you have done it with the best of intentions. If the employee later sues, claiming the real reason was discrimination, not lack of work, you will have to explain, and your credibility will be compromised.

Inconsistent

You discipline an employee for being late three times, and he or she says, "But John was late six times and he didn´t get disciplined." Your inconsistency makes you look unfair or discriminatory.

Creating personal documentation

Managers often jot down notes to themselves-unsigned, undated, perhaps illegible, and never shown to the employee. Such documentation is weak at best. The employee can accuse you of just making this up now, and that he or she never knew there was a problem.

Overdocumentation

Some documentation is so overboard that it covers "the employee was two minutes late" to "the employee slugged the supervisor." Focus only on the important incidents, says Keegan.

The ´last straw´ tendency

Conversely, avoid the tendency to focus just on the straw that broke the camel''s back-that is, the final incident. Don''t ignore the long history of incidents that lead up to the last one.

Missing documents

Keegan reports that it is not unusual for managers and supervisors to say they documented everything, but then when the time comes to produce the documents, they are nowhere to be found. As HR managers review a situation, they should ask to see the documents.

Must the employee sign

Should the employee sign all documentation? Yes, says Keegan, ideally the employee signs all documentation. The signature acknowledges receipt of the document, not agreement with what it says. If employees refuse to sign, she says, don´t worry; the refusal just proves they really are uncooperative and contrary. In general, she says, do not put anything in writing that you have not discussed or are not willing to discuss with the employee. Nothing in the file should be a surprise to the employee.

Furthermore, use the "Journal Test," she suggests. Don´t put anything in writing that you wouldn´t wish to see on the front page of the Wall Street Journal. For example, on documentation that would otherwise have been valuable, Keegan has seen the following statements:

She hasn''t been the same since she got pregnant.
Don''t hire-too old.
Never showed for interview; can''t trust those people.

 

Are written warnings required?

Nothing in the law requires written warnings, notes Keegan. However, in her experiences watching mock juries deliberate, Keegan has heard the jurors talking about written warnings. The jurors generally agree that written warnings are required, and they hold it against a company if warnings haven´t been issued.

When should you start documenting?

In a situation which has developed over time, managers and supervisors may not have documented the initial events except on informal notes. However, when the situation escalates or starts to head downhill, recapture the informal notes in a formal document that details times and dates and content of the prior informal discussions.

Keegan´s keys

Keegan offers the following keys to better documentation:

• Make your documentation simple, factual, and non-accusatory
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• Date and sign all documents
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• Establish an internal system to check for consistency
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• If possible, get the employee´s side on record.

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This article was reprinted with permission from the HR Manager´s Legal Reporter.