6 Common Mistakes That Weaken Documentation

Documentation is the key to defending your Organization against legal suits brought on by former or current employees. However, poor documetation will not only not help your defense but can actually be used against you. Attorney Jonathan Segal, a partner with Wolf Block Schorr and Solis-Cohen in Philadelphia delivered the following remarks on improving documentation at a recent Society for Human Resource Management (SHRM) Conference.

The hardest part of writing a discipline memo is writing the first sentence, so give your supervisors a list of 20 or 30 general openings.

As an example of a first sentence, he suggests, "We expect our employees to report for work without being under the influence of alcohol or drugs." Or "We expect employees to safeguard the employer's property." These starter sentences will get your supervisors rolling and help them to focus on what's job-related.

In his talk, Segal also identified these common mistakes that weaken documentation.

1. Generalities Instead of Specifics: Often, supervisors and managers document general conclusions as opposed to describing specific behaviors. For example, firing for "bad attitude." How might this verbiage play out in a legal setting?

Your employee Susan has filed charges against you, and you arrive at the hearing with hatred in your eyes. But Susan is bright and cheery: "How's everyone doing? Great to see you," she declares loudly. The investigator sees your anger, and the employee's sunny disposition. And you're going to say she was fired for a bad attitude? Good luck with that!

How do you prove a bad attitude? Focus on what specifically happened to show attitude, says Segal. The sequence might go like this:

--"Susan has a bad attitude in that she is disrespectful to other employees."(Drill down.) "She talks down to employees."(Drill down.) "She said to her employee, 'This is so easy that even you, with your limitations, can understand it.'"

2. Using Legal Labels: Train managers not to use legal labels in their documentation. For example, if an employee shows off a Playboy or Playgirl, don't call it "sexual harassment," call it "offensive material of a sexual nature." If discussing a racial slur, it's not "racial harassment" it's a "hateful term of a racial nature."

3. Using 'Proxy Adjectives': Managers often use "proxy adjectives" that suggest bias, Segal says. Charges like "too emotional" or "failing to change" are examples. Better to say, "she didn't prioritize, she wasn't multitasking, and she was yelling."

Another example: An accounting firm managing partner fired his secretary because she was "resistant to change." That sounded like age bias, says Segal, when what she did was simply refuse to use e-mail. That's simple insubordination.

4. Focusing on Intent, Not Outcome: Suppose you have two employees-Matt and Martha-says Segal. Matt loves your organization, but he cares so much that he obsesses over everything, and accomplishes little. Martha couldn't care less, and hates the place, but hits 170 percent of her goal. So you say to Matt, "We lose money on every breath you take, but we like your attitude, so here's your bonus." And you say to Martha, "You don't care, your attitude is bad, no bonus for you." This is focusing on intent as opposed to outcome. And that can lead to a bad outcome for you.

5. Using Absolutes: "Never say never or always," says Segal, as in, for example, "You always miss deadlines." The employee can rely, "Not true, I met a deadline in 2004." Absolutes almost always end up with an untrue statement, your employee's lawyer will argue.

6. Using Too Many Hedges: Segal often sees phrases in warnings such as, "it appears" or "it would seem." These are heard as "you don't know" by the jury, he says. Here's an example: "It would appear that David doesn't know how to use the new computer system." What's the fix? Drill down, says Segal. State that "David made 11 mistakes, and took 2 hours more than anyone else."

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