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CHICAGO—Document management is the “downfall of most EEO programs” and should be a central focus of inquiry in HR audits, according to Timothy Davis, a Constangy, Brooks & Smith attorney in Kansas City.
At a June 22 preconference workshop, “Skeletons, Brooms and Old Baggage: Cleaning Your Closet with an HR Audit,” held in conjunction with SHRM’s Annual Conference, Davis encouraged HR professionals to edit employee handbooks and managers’ documentation.
Finalize Interview Notes
HR’s role as editor should start even before hire, Davis said, urging HR professionals to be particularly vigilant about interview notes.
“How many of you let your management teams do interviews?” Davis asked session attendees. Most raised their hands.
“You’re brave,” he said, recalling one client that had difficulty defending itself from a disability discrimination claim because of a manager’s interview notes.
The manager had trouble remembering the names of applicants, so he’d scribble notes on their applications to jog his memory. “A short, heavy-set, dark-haired lady walking with a limp,” read one note, which became a central piece of evidence after the applicant wasn’t hired and sued.
Davis said that HR professionals should train supervisors not to keep interview notes with personal observations.
Instead, after an interview, Davis recommended that interviewers meet with HR, who he said should compile master notes and keep them in a separate file apart from personnel files. If there are any other interview notes, he said, they should be discarded.
Of course documentation is critically important after hire too. Every day that someone comes to work is a paragraph in that employee’s story, Davis reflected, saying that managers should be the authors who document that story in a way that foreshadows problems as they arise.
That way, if the story has to end with an employee’s discharge, the termination doesn’t surprise anyone.
HR also should take out the red pen to pare down outdated and overgrown employee handbooks, Davis recommended.
He recalled one plaintiff’s attorney who asked question after question during a deposition about the employer’s mission statement. The plaintiff’s lawyer tried to spin the mission statement’s positive language into principles that the employer failed to meet and succeeded in making the deposed manager uncomfortable.
Other employee handbooks simply are too long and confuse employees.
Davis encouraged one of his clients, a manufacturer, to consider whether it needed an employee handbook, which he said plaintiffs’ attorneys often try to use against employers.
The manufacturer decided to toss out the employee handbook, which it concluded didn’t serve any purpose. The company replaced the handbook with a simple overview of a few main policies, including its policies on EEO/nondiscrimination, family and medical leave, progressive discipline, drug testing, benefits and off-the-clock work.
A conference attendee asked Davis when he thought an attorney should get involved in an HR audit.
“Throughout the process, there’s not a need for a lot” of input from lawyers, he said, acknowledging HR’s goal of “minimizing having to use lawyers for everything” because of their expense.
But, Davis emphasized, HR professionals should ensure that attorneys are involved early during an HR audit and, should the employer choose to have an audit report, as the company prepares the wording of the final report. With attorneys’ oversight and direction, Davis said that more of what is done during the audit will fall within the cloak of the attorney-client privilege.
Allen Smith, J.D., is SHRM’s manager of workplace law content.
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