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Lessons Learned: Effective Documentation

Lessons Learned: Effective Documentation

By Alan E. Seneczko of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Employment Policies and Procedures on Monday, January 15, 2018.

“The importance of documentation” is an axiomatic, and almost trite, battle cry that human resource professionals constantly beat into the psyches of their supervisors – quite often to no avail. But what, really, is “documentation?” When do you do it? How do you do it? And, what, exactly, are you supposed to document? More importantly, have you ever conveyed this information to your supervisors?

Documentation serves many purposes. It can help prove an essential element of a claim – such as “misconduct” in an unemployment claim, or a “legitimate business reason” in a discrimination claim. It can help defend a claim, confirming that certain action was taken, demonstrating that others were treated in the same manner, or preserving a record or history of prior events. Most importantly, it is the best evidence of events as they occurred – at a time when they are fresh in the individual’s mind. This information generally constitutes the best evidence of what actually happened, and allows the individual to recall it in much greater detail several months, or even years later.

When to document? Prepare your documentation as close in time to the event you are seeking to document as possible. This is not only important because the relevant facts will be freshest in your mind, but also, because it is necessary for the documentation to be later admissible as a “business record.” “Documenting” a conversation three months later, after a charge of discrimination is not documentation that constitutes admissible evidence, and is therefore only helpful for background purposes.

What to document? The simple answer is “whatever might become an issue later.” Examples include: attendance – reasons given for absences and tardiness; performance – significant incidents of inadequate job performance, violations of work rules, repeated unacceptable behavior, etc.; attitude – manifestations of inappropriate comments, gestures or actions not otherwise apparent; discipline – a contemporaneous record of verbal or written warnings for violations of work rules, including the employee’s response and agreed-upon corrective action; complaints from co-workers – the name of the individual complaining, the date of the complaint and the nature of the complaint; receipt of information – confirm receipt of policies, work rules, etc.; training – confirm participation, subject matter and materials distributed or relied upon; investigations – record response to complaint, including action taken, information received, etc. To name a few.

How to document? Be specific – include date (with year), names, and all relevant information. Do not assume anything is so obvious/easy that it will not be forgotten. Be detailed – use exact words, no matter how offensive or vulgar, and quotes whenever possible. Be accurate – do not omit relevant details, make assumptions or misrepresent what actually happened. Be smart – remember, what you write may someday constitute evidence in a legal proceeding. Your notes will thus help – or hurt your case. Make it easy – prepare/use established forms, email, notes to self, or whatever it takes to be sure that the record is made. The more difficult or burdensome the requirement, the less likely it will be happen. Don’t sugarcoat reality – when conducting a review or performance evaluation, be brutally honest! Do not water down your criticism, or shy away from an unpleasant discussion. Your “just being nice” will come back to haunt you when it is time to make a hard decision.

What about emails? In today’s electronic work environment, no discussion of documentation can be complete without specifically addressing emails, electronic documentation that can potentially win your case – or lose it! In this regard it is critical to recognize that emails can be used to demonstrate the existence of unlawful or improper motives, ill will or malice by an employer, supervisor or manager; evidence of pretext (i.e., the absence of purported reasons for acting); or “knowledge” of unlawfulness of conduct for purposes of punitive or liquidated damages. At the same time, emails often contain the best evidence of the underlying conduct at issue, providing colorful evidence of an employee’s attitude, and/or demonstrating the legitimate, non-discriminatory business reasons for an employer’s actions. They can be very helpful in proving “misconduct” for UC; establishing evidentiary facts and/or evidence of “knowledge” (or the absence thereof) in harassment cases; records of prior discipline or warnings, and/or “notice” in discharge cases. Remember, once you hit “send,” you have just created a permanent record of whatever it is you just said.

Effective documentation can be a lawyer’s best friend – or worse enemy. If you follow the above guidelines, you will be well on your way to becoming a good friend.

If you would like more information, or have questions about documentation, contact Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.

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Discipline

Penn State Sandusky Saga Continues to Provide Painful Lessons for Employers on What Not to Do In Response to Workplace Scandals Such as Employees Engaging in Sexual Misconduct, Harassment, etc.

Penn State Sandusky Saga Continues to Provide Painful Lessons for Employers on What Not to Do In Response to Workplace Scandals Such as Employees Engaging in Sexual Misconduct, Harassment, etc.

By James B. Sherman of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Discipline on Thursday, November 17, 2016.

Already, Penn State University has paid a heavy price (millions of dollars and lost football scholarships, not to mention damage to its reputation) for allegedly sweeping under the rug scandalous conduct of convicted sex offender and former assistant football coach, Jerry Sandusky. However, while Penn State’s football team appears to have weathered the storm, the university’s problems are far from over. In October, a jury awarded former assistant coach, Mike McQueary, $7.3 million for Penn State’s mishandling of his report that he had witnessed Sandusky molesting a young boy in a locker room shower. Worse yet, on November 30th a judge tacked on another $5 million for McQueary’s whistleblower retaliation claims, separate from the already huge jury verdict. This case holds some poignant lessons for employers who may be faced with news of serious misconduct by any of their employees, whether it be sex harassment, unlawful discrimination, or criminal activity.

McQueary’s lawsuit against Penn State alleged that school officials misled him by misrepresenting that his report of Sandusky’s criminal conduct, was being taken seriously and would be investigated and handled appropriately. Instead, the former Penn State quarterback accused university administrators of engaging in a cover-up to prevent the scandal from tarnishing Penn State’s national reputation gained under former head coach, Joe Paterno. Worse yet, when the Pennsylvania Attorney General pursued perjury charges against these officials for allegedly lying under oath to a grand jury by denying that McQueary had reported Sandusky’s behavior, Penn State’s then-president publically commented that he was confident the charges would be proven groundless. In his concluding remarks to the jury at trial, McQueary’s attorney supported his claims of fraud and defamation by asking rhetorically: “How in the world can the charges be groundless unless [McQueary] lied to the grand jury about what he reported?”

Perhaps the final straw that may have added millions to the jury’s verdict, was the university administration’s decision that McQueary – a witness and not the one accused of wrongdoing – should be placed on administrative leave and banned from athletic facilities within days of the indictments being handed down. At trial, Penn State’s attorneys claimed this was done to protect McQueary in response to death threats against him. However, the jury did not appear to buy this explanation, concluding instead that McQueary was penalized and retaliated against for sticking to his testimony that seriously contradicted the university’s defense in the Sandusky scandal.

So what can employers take from Penn State’s hard-learned lessons? One key lesson, is that going into cover-up/denial mode in the face of workplace scandals can backfire horrendously. Taking sides in workplace investigations before all the facts are known, should not happen. But more subtly, just as most employers and HR professionals know not to penalize the victim (e.g. in a harassment scenario) the same holds true for employees who witness and report serious misconduct. The size of the jury’s verdict in the McQueary lawsuit speaks volumes on how dangerous it is to mistreat witnesses whose versions of the facts do not happen to support the employer’s defenses. Penn State’s gravest error may have been to side at least initially with Sandusky, or placing the preservation of its own public image over credible evidence from McQueary and other witnesses. The ongoing fallout over this scandal serves as a reminder to all that no one is beyond reproach, not top officials or even successful football coaches. Faced with bad facts, sometimes it is best to just throw in the towel and live to fight another day.

Related Posts: Lessons Learned: Effective Documentation

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