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An irate customer e-mails a complaint that causes a supervisor to fire off a text message from his BlackBerry to the employee who handled the customer. A manager sends an instant message containing a “verbal” warning to a remote worker who has logged in late three times in violation of the attendance policy.
HR and legal experts say the burgeoning use of e-mails, text messages and instant messages brings with it pros, cons and risks when it comes to retaining, organizing and retrieving documentation related to employee performance.
Greg Szymanski, SPHR, the HR director for Seattle-based real estate development firm Geonerco Management Inc., said whether performance-related e-mails and texts are stored electronically or printed and placed in a personnel file doesn’t matter, because from a legal standpoint, “it’s all discoverable if things go sideways, which, at the end of the day, is one of the main reasons for retaining employee-related information anyway.”
Joey Costyn, an associate in Ford & Harrison’s Atlanta office, says courts and juries give e-mail at least as much weight as other performance documentation, sometimes more.
“While a performance appraisal may be more detailed, it is usually based on a manager's recollection of the employee's past performance,” Costyn observed. “E-mails can be seen more as a present sense impression, as they are dated [and] time-stamped and generally are prepared ‘in the moment.’ ”
Costyn added that whether an employer stores performance-related e-mail, texts and other electronic communications electronically or physically, the key is that “it is done deliberately and consistently. With either method of retention, employers need to train their managers to save, catalog and store the information according to policy.”
Pros and Cons
Janine Yancey, SPHR, an employment lawyer and CEO of HR and compliance training firm emTRAiN in Sacramento, Calif., said there are plenty of ways that e-mail documentation can hurt or help an organization.
“Smoking gun” e-mails from one manager to another “that reference an employee in an unprofessional or inappropriate manner” can become part of discovery during court proceedings, Yancey said. Conversely, e-mail communications can help managers defend their actions if they are seen “as acting professionally and providing helpful feedback to employees in e-mails.”
Likewise, if an employer terminates an employee for performance but there’s a plethora of e-mails praising the employee—to the employee directly or among supervisors—“this can undercut the stated reason for the decision,” said David M. Cogliano, a labor and employment attorney with Davis, Malm & D'Agostine in Boston.
He added that “far too frequently supervisors put harsh critical comments in an e-mail that they would never put in a written memo or verbalize. Employees—supervisors and subordinates alike—treat e-mail like it is transient and disappears when you hit delete.”
What Is Performance Documentation?
“Sometimes, it’s not so easy to decide what constitutes performance documentation,” noted Barrie Gross, founder of HR training and consulting firm Barrie Gross Consulting in San Francisco.
Gross said the best thing to do is to “think of it very broadly” because it includes formal performance evaluations, self-evaluations, disciplinary records, notes of conversations between managers and employees, goals and objectives, action plans, positive and negative e-mails about performance-related issues and other notes and documents used to prepare evaluations.
“Everything you write as a manager can be viewed by third parties, whether it’s your boss, the employee’s spouse or domestic partner, the employee’s lawyer, a news organization or a jury,” Gross said. “When you put anything in writing, it needs to be accurate, unambiguous and clearly express the precise message you intend to convey. And you need to be sure before you write it that the content is appropriate regardless of the subject.”
Szymanski said any document that describes performance, whether good or bad, should be treated similarly.
“A file papered with all bad news is suspicious simply because it will appear that someone was out to get the employee in question,” Szymanski said. “A performance review should contain supporting documentation to show how the manager arrived at various performance review assessments.”
Supervisor’s Files vs. Official Personnel File
Costyn said supervisors shouldn’t keep anything in their files other than performance notes to assist them in preparing annual reviews.
Cogliano recommended printing e-mails that relate clearly to performance and will impact an employee’s evaluation and/or compensation and storing them in a personnel file.He further recommended the use of separate e-mail folders so that supervisors “have an easily accessible repository of any communications about a particular employee.”
While states have different requirements for what must go in a personnel file, Cogliano said, e-mails commending or critiquing employee performance “are best kept.” He adds that employers make a mistake when they assume that because it is an e-mail, it is informal. “That is not the case,” Cogliano noted, which is why supervisors should be very careful about what they put in e-mail.
“If it is important enough to document, it should be included in the employee's personnel file,” he said, because a supervisor’s files escape the review and expertise of the company's human resources, legal and risk management professionals “and could result in substantial liability for the company.”
Tony Rea, SPHR, managing principal of 20/20 HR LLC, a Mokena, Ill.-based consulting firm, cautioned that a manager’s “desk” file should not contain anything that would conflict with the “official file.”
“Many employers advise their managers not to keep such files but, unfortunately, managers ignore this advice,” Rea said.
Cogliano said that formal evaluations and notifications of compensation adjustments, as well as formal warnings or other forms of discipline done via e-mail, should be kept in a personnel file, while informal e-mails between a supervisor and an employee can stay in the supervisor's file.
Generally, however, Cogliano said, when he gets a request for a personnel file from an employee for one of his employer clients, he requests the personnel file “and any relevant supervisor files” to ensure that he has “the entire universe of documents to review before producing the ‘personnel file.’ ”
“Often there may be documents in the supervisor's file that should go in the personnel file, and I want to be able to make that decision,” Cogliano noted.
Gross said most employment-related documents should be retained “for the life of the employment relationship plus one to three years, depending on the type of document.” She said that if there is litigation or an agency charge after the employment relationship ends, the retention period is extended until the case or charge is resolved fully.
She added that an organization that receives notice of an employment-related complaint or lawsuit should be careful not to destroy any documents because it could face charges or sanctions for doing so. Gross said that rules about retention and destruction apply to electronic documents as well as to e-mail and to originals, duplicates and drafts.
Pamela Babcock is a freelance writer based in the New York City area.
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