When Documenting, Beware: Missteps Can Sink Your Ship in Court



Sally, an operations director, is frustrated with John, an employee on her team who uses foul language, publicly berates subordinates and demonstrates intimidating behavior toward co-workers. She prepares a final written warning for inappropriate workplace conduct, and because she wants the employee to understand how serious the situation is, she notes that John intentionally harasses people on the team and creates a hostile work environment.

Could that sort of documentation come back to haunt Sally and her company legally? "There are two common errors that leaders make when documenting investigations," according to Sam Sherman, employment defense attorney with San Diego law firm Tencer Sherman. The two errors—typically committed when drafting performance reviews and documenting disciplinary action—are codifying the damage and using mental qualifiers.

"They're fairly easy to avoid, though, if you're aware of them and understand the logic behind the damage they can cause," Sherman said.

Avoid Codifying the Damage

Many well-meaning leaders place their organizations at risk by not thinking through the significance of their corrective action documentation. For example, if, in the documentation, it says that an employee "sexually harassed" or "retaliated against" a co-worker, those phrases could later be used against your company as a concrete, documented fact. "'Sexual harassment' is a legal conclusion," warned Sherman. "If you confirm in writing that sexual harassment has indeed occurred, then your own investigational documentation may become prime fodder for a plaintiff's attorney looking to find proof of a supervisor's inappropriate actions."

As another example, if it is written that a loan administrator "mishandled a pool of loans" by failing to follow appropriate mortgage banking guidelines, then this documented information could become evidence of neglect and mismanagement on your firm's part if that pool of loans never gets sold on the secondary mortgage market or otherwise becomes discoverable to stock investors.

Instead of naming or codifying the specific damage to the organization or to the employee on the receiving end of a supervisor's inappropriate workplace behavior, document such matters using language that is less concrete. For example, if it appears that a worker violated the company's anti-harassment policy, say that: "This individual's actions appear to violate company policy 5.30 on Respect in the Workplace." You might also write: "The employee's actions suggest that he may have inadvertently created an offensive environment" and that, as part of your follow-up action plan, you would expect the individual to "never again engage in conduct that could appear to diminish a person's self-worth or sense of well-being." Similarly, in the case of the loan administrator's performance, you might document: "The loan administrator's failure to follow standard operating procedure could have potentially jeopardized an entire pool of loans."

While certain documents may be protected by the attorney-client privilege because there is a need for legal counsel's analysis and guidance, all of your investigation notes probably won't be protected by the privilege (i.e., barred from consideration by the plaintiff's attorney). In fact, your notes will basically become the foundation on which the company justifies its defense. As such, Sherman advised, "Avoid codifying any damage by avoiding conclusions and instead simply document facts, which will prevent your own documentation from inadvertently benefiting a plaintiff attorney's case against your organization."

Avoid Using Mental Qualifiers

In particularly egregious cases of workplace misconduct, supervisors sometimes try to paint a picture of the severity of an offense by using terms like "deliberately," "purposely," "intentionally," "willfully" and "maliciously." Such mental qualifiers may indeed drive home your point that someone acted in a highly inappropriate way, but it isn't necessary to use such descriptions. "Instead," recommended Louis Gutierrez, an employment attorney and chief human resources officer at the Port of Long Beach in Long Beach, Calif., "let the facts speak for themselves." It doesn't matter whether "John deliberately tried to offend Sally publicly in front of her whole team." All that matters is that "Sally stated that she felt offended by John's comments, which were made in front of the whole team" and that John's actions were "confirmed by other credible witnesses." One is an objective observation, while the other is a subjective judgment. "Always document objective observations and avoid anything that might appear to be subjective or judgmental," advised Gutierrez.

In the litigation arena, this becomes all the more relevant. Plaintiffs' attorneys will be quick to cast doubt on the validity of your "objective" investigatory findings if you pepper your notes with adverbs that speak to someone's alleged state of mind. In essence, you may end up making yourself vulnerable to a slew of legal challenges, as a plaintiff's attorney can challenge your fact-finding skills and attack your credibility with questions about how you could have possibly known what was going on inside their client's (your former employee's) mind at the time of the incident. For example, an attorney might say: "How do you know that my client was acting deliberately and willfully when he made that remark? How could you purport to know what was going on in John's head at the time of the incident in question? How well do you know him? Do you not like him for any reason? Can you honestly state that you've harbored no prior resentment against him for any reason when conducting this investigation?"

In summary, "avoid words like deliberately, intentionally, purposely, willfully, or maliciously when documenting your findings during an investigation and, as a general rule, stay away from adverbs," advised Gutierrez. "They're simply not necessary and do little to drive your message home." Moreover, they do little to support your investigatory findings and any remedial action but can do a lot of damage to your credibility in the litigation arena.

As a corporate leader, drafting corrective action and annual performance reviews may not be things that you do often or enjoy. Still, because formal employee documents can be subpoenaed and used as evidence against your company, they are critical records. Make sure you're aware of how to write them properly to accord employees with workplace due process, turn around substandard workplace performance or conduct, and protect your company legally should a wrongful termination case ensue.

Paul Falcone is an HR consultant in Southern California, the bestselling author of a number of AMA- and SHRM-published books, and has held senior-level positions with Nickelodeon, Paramount Pictures and Time Warner.  His newest book, "75 Ways for Managers to Hire, Develop, and Keep Great Employees,” focuses on effective hiring, performance management, and leadership development.