How to Create Bulletproof Documentation

Most HR professionals recognize the importance of documenting employees’ performance problems.
​
Their challenge is to teach managers how to document those issues in an appropriate manner, attorney Allison West told attendees during her June 22 concurrent session at the Society for Human Resource Management 2016 Annual Conference & Exposition in Washington, D.C.

“The mindset is critical,” said West, SHRM-SCP, SPHR, principal with Employment Practices Specialists in Pacifica, Calif.

The purpose of documenting performance problems properly isn’t just to protect the employer in case a worker files a lawsuit. It’s also “to show the steps we’ve taken to help someone be successful,” said West, who provides training, conducts workplace investigations and serves as an expert witness for employers and employees in legal disputes.

Good documentation creates credibility for the employer by showing that employees are treated in a fair and consistent manner, she said. Some common mistakes include:

• Making vague, unclear statements about what the employee needs to do to improve.
  
• Adding personal attacks or subjective comments. 
  
• Providing little or no evidence to support decisions to discipline or terminate an employee.
  

She shared these seven rules for creating “bulletproof” documentation:

1. Describe company expectations. Clearly state what the job description or the company policies require. Don’t simply tell a worker she must “show up on time.” Instead, say, “Your job begins at 8 a.m., at which time you should be at your desk ready to answer client calls.” 
   
2. Describe the behavior or performance that must change (or that you want to continue). Describe the conduct, not the individual. Avoid making broad judgments using words such as “always” and “never,” which can be easily disputed by the employee’s attorney. “It’s these filler words that get us in trouble,” West said. Best practice is to record specific dates to show when and where the unwanted behavior occurred. Keep your observations job-related. Describe how the worker’s behavior impacts others trying to do their jobs. Don’t forget to include positive comments as well. 
   
3. Include the employee’s explanation for why expectations aren’t being met. Having a two-way conversation shows the manager’s attempt to be fair and learn how to help the individual. Rushing to judgment can backfire on a manager. West recalls a manager who wanted to fire a newly transferred individual for arriving at her desk late three times in her first weeks. West insisted that the manager go back and ask why she was arriving late. It turned out that the employee had agreed to train her replacement in another department.
   
4. Prepare a detailed action plan that the employee should use to improve performance. This isn’t a performance improvement plan, but more like coaching the employee to do better, West said. Include specific steps the employee will take to improve and what you will do to help. Be realistic. Focus on a few key areas.
   
5. Set deadlines for correcting the behavior or performance. Don’t say, “We expect you to turn things around immediately.” That can mean different things to different people, she said. Rather, say, “We expect your report will be turned in by 5 p.m. tomorrow.”
   Follow up at the specified deadline. “If you don’t follow up, it shows you don’t care,” West said. Keep a written record of what happened, including the employee’s explanation. Perhaps circumstances beyond his or her control prevented the worker from meeting the deadline. Record whether additional training is needed and any discipline that is meted out. For senior-level employees, make them accountable. Put the responsibility on them to report back by the deadline, she advised.
6. Describe the consequences if the behavior or poor performance continues. Obviously, you don’t want to discuss consequences in early coaching sessions, she said. However, after repeated attempts to help the employee meet expectations have been unsuccessful, or in the case of serious policy violations, disciplinary action may be needed. Describe the conversation in detail. A termination letter should state specific dates of meetings with the employee and should include attempts to provide additional training or coaching. It should recap the reasons for termination as specifically as possible.
   
7. Avoid vague phrases that could provide grounds for discrimination lawsuits, West said. Don’t terminate someone for a “bad attitude” or because he isn’t a good “culture fit.” Those are red flags that could cause the employee to believe the firing is attributable to his or her gender, race or national origin—or to his or her membership in another group protected under federal civil rights laws, she said. 
   

Her final tip: Remember to prepare documentation with the expectation that a third party (internal or external) will review it. Include enough information so others know what happened and what steps were taken to put the employee on notice and offer the individual an opportunity to correct performance.

Dori Meinert is senior writer/editor for HR Magazine.