Document! Document! Document! Why does it matter?

Employers have internal documentation which could include their decision-making process, such as those related to a RIF, investigatory files and notes, or supervisory notes regarding discipline. They also have documentation or written communication that they provide to employees, which is where we’ll focus on this article.

Initial Documentation to Set Expectations

As a best practice, employers should set clear expectations of behavior/conduct and performance, and the consequences of not meeting them from the beginning. Start by providing employees with your overall documented/written expectations, such as employee handbooks, policies, plan documents, standard operating procedures (SOPs), and job descriptions. When providing these documents, it’s best to obtain a signed acknowledgement as evidence that the employee received the document. Often, acknowledgements may contain statements that the employee had read, understood, and had an opportunity to ask questions as well as received the document.

Corrective Action Documentation

Once you’ve provided these documents with your clear expectations and consequences, some employees still may not be able to meet those expectations. This is where the disciplinary process and/or performance management occurs. The best practice is to meet with the employee and remind them of the expectations and consequences, and provide specific, factual examples of how they did not meet those expectations. In addition to the communication, you should document it  by providing, for example, a follow-up email/letter, disciplinary letter, or performance improvement plan.

Supervisory Notes v. Documentation to Employee

Often, supervisors may make a note in their notebook or supervisory file that they had a disciplinary discussion with an employee. In the early stages such as an initial conversation, that may be sufficient as you may want to put the employee on notice but show that it isn’t yet so serious (e.g. verbal warning). In other cases or when progressing further, you may have that initial discussion and follow it up with a summary of the conversation, including expectations and consequences. This could be a verbal (documented) warning, a coaching or counseling letter, or simply an email summary. However, as conduct or performance issues continue, additional documentation steps should be taken. The different levels of discipline also signal to the employee the level of seriousness.

When a supervisor only makes a record in their file, employees can dispute what occurred in the meeting. They may claim that they did not receive any discipline or that they did not understand the consequences of their actions.  When you provide written documentation to the employee, you can show that the employee had knowledge of the expectations and consequences of their actions and was put on notice. You also have specific evidence that the discipline occurred. Here, a signed acknowledgement again provides stronger evidence that the employee received the notice.

Timing of Documentation

A best practice is to document as closely in time to the occurrence as possible. When employers document internally in that moment or immediately after, memories are clear and the individuals involved can provide more specific details regarding the facts. When providing documentation to employees, such as corrective action, again, the soonest possible timing is the best practice. If the employer waits a few days or weeks, the employee’s conduct might have progressed further, such as additional violations that didn’t receive discipline or poor performance that wasn’t addressed. During that time, when the conduct or performance wasn’t addressed, the employee might have a work-related injury, require a leave of absence, or have a disability requiring reasonable accommodation, which further complicates managing their conduct and performance.

Sample Scenario

Jake is a warehouse employee, and his job is to load boxes onto trucks for delivery. Jake is always late for work, wanders around the warehouse chatting with other employees and interrupting their work. He does not complete his assigned tasks on time, and his production levels are much lower than those of his co-workers. His supervisor hoped he would improve, and pulled him aside multiple times to provide coaching. However, none of these conversations were documented, and the employee never received any disciplinary action. His supervisor can’t take his lack of performance and absenteeism any longer and wants to terminate his employment. As you consider this very common scenario, let’s highlight reasons why thorough documentation is critically important.

Key Reasons to Document

1. Documentation shows the reasoning and legitimate business justification for employment action. This can occur both in your internal documentation, and in your documentation to employees. Here, if Jake’s supervisor wants to terminate Jake now, he doesn’t have any documentation to prove that the reason he is terminating him isn’t for a discriminatory or retaliatory reason instead of a legitimate business justification. Thorough documentation would help mitigate risk.
2. Documentation also provides and proves consistent policy enforcement. When HR or supervisors change, having documentation of prior reasoning for HR related business decisions or performance or disciplinary action provides a clearer handoff for the next HR professional or supervisor, especially when there isn’t an opportunity for direct training from their predecessor. In addition, in an audit or an investigation, thorough documentation allows employers to look across all employment actions and show that each employee was treated consistent with the policies and consistent with other similarly situated employees. Consistent and fair treatment across all employees also maintains employee morale and engagement, ideally leading to more productive employees, and maintaining positive employee relations, especially between supervisors and employees.
   One helpful tool is a past practice log. This is an internal document/spreadsheet that records decisions such as disciplinary actions. As employees are being reviewed for discipline, HR can go back and review the policy violation, the facts of the case, the discipline level, and any extenuating circumstances or areas of differentiation. This can help inform the decision-making process, and provide guidance to ensure and prove consistency, when used properly. It can also prove that the employer consistently applied their policy and employment action.
3. Documentation can help support the supervisor and employee. When the supervisor has documented the specific conduct and performance issues such as in their supervisory file, it helps prepare them for their conversation with their employee. Providing employees with clear expectations and consequences through documentation, such as a written warning or performance improvement plan, gives employees clarity to understand the consequences of their actions and an opportunity to change.
4. Though not directly highlighted in the sample scenario above, employers should maintain thorough documentation to satisfy legally mandated recordkeeping requirements, such as payroll records and I-9 Forms, and demonstrate compliance with legal obligations, such as leave of absence laws and reasonable accommodation requirements. For example, under the Americans with Disabilities Act (ADA) and Fair Employment and Housing Act (FEHA), employers have an obligation to engage in the interactive process for reasonable accommodation. The best practice would be to document this process, including all communications, any accommodations that have been provided, as well as required medical documentation. See our  Records Retention Requirements Chart and Reasonable Accommodation Request forms for more details.

Conclusion

In the sample scenario above, Jake’s supervisor could put the employer at risk by terminating the employee without prior documentation. Being able to show consistent enforcement of policies through your documentation can help prove that termination was based on a legitimate business reason such as policy violations or lack of performance. Moving forward, creating strong documentation beginning with policies, and reinforced with written employee communication specific to individual employees, where needed, can help mitigate risk and improve employee relations.