With the recent changes in Illinois law regarding employees, we thought we would dust off a few items for business owners, manages and employers.
“Document, Document, Document.”
In court, clear and specific documentation about an employee’s performance or behavior can mean the difference between a quick employer victory and an expensive defeat.
Anyone reading your documentation should walk away knowing the who, what, where, when, how, and most important, the “why” behind any decisions … and that you treated the employee consistently and fairly. Anything less and your documentation becomes an Exhibit Number 1 for the employee in court against you.
Mistake 1: Using legally risky words
When a judge, jury or plaintiff’s attorney reads a manager’s documentation, they can only go by what is written down.
Often, managers write absolute expressions such as “always” and “never,” as in “The employee never turns in reports on time.” In reality, however, that’s rarely true. Using these types of absolutes without being 100% certain will undermine your credibility and hurt your case in court.
Tip: Choose your words carefully. Simply state the facts: “In the past three months, the employee turned in weekly reports on time only once.” This way, you’re more accurate and take a more professional tone.
Mistake 2: Surprise!
No employee should ever be surprised when he or she is terminated or disciplined for poor performance.
But, too often, the scenario goes like this: The manager has put the employee on super-secret probation for the past year—but never tells the employee about it (a la Animal House). Finally, the manager decides enough is enough. The manager wants the employee terminated.
The resulting ambiguous documentation does not put the employee on notice—and it gives the employee reason to question the “real” reason the employee is being fired (race or age discrimination perhaps?).
Tip: Your documentation must be direct; include specific expectations and the reasons the employee is not meeting those expectations.
Mistake 3: Lack of follow-up
Solid documentation must include regular follow-up discussions.
Proper documentation would cite coaching sessions, the employee’s stated reasons for not meeting goals and efforts by the manager to help.
Tip: At the end of the day, your documentation must be accurate, state the facts, include the employee’s explanation, and show all the efforts the manager made to help the employee succeed.
The five (5) legally safe way to document discipline
- Be specific. Example of poor documentation: “Employee was late twice in the past two weeks.” Better: “Employee was 45 minutes late on Aug. 15; reason given: missed bus. Employee was 30 minutes late on Sept. 3; reason given: overslept.”
- Be clear and factual. Note the policy or procedure that was violated. Date the document, day, month and year.
- Avoid emotional content, including personal impressions (“I think …”), labels (“He’s a complainer …”), adjectives (“very unproductive …”) and drawing conclusions about the reasons (“It’s probably because of his divorce”).
- Be consistent. Don’t write up one person for a behavior that you ignore in other employees.
- Ask the employee to sign and date the document if the document is going into the personnel file. If the employee refuses to sign, note that on the document.
We have litigated dozens of employment cases, both in state and federal court. We know what wins favor with the judge and jury, and the proper documentation that will help.