Your HR manager is a pro at documenting employee performance problems – not just because it is his or her job, but largely because they understand that failure to do so can land the company in legal hot water. However, managers, who are typically the ones who are providing day-to-date job feedback and delivering more formal performance reviews, are generally not as hip to the laws, which can open the company up to some degree of legal liability should an employee sue for wrongful termination down the road.
With this in mind, employment law attorney Katie Anderson of Strasburger & Price identified in a recent blog post for her law firm the following six documentation pitfalls that even smart companies can make:
HR pros are always recommending that you document employee problems from the start, and it’s not just some evil ploy to create more paperwork! Rather, it is an essential part of the bulk of employee termination suits. Realizing your error – and attempting to fix it by creating new documents and making them look like old docs – almost never works, in large part because the IT folks retained by employee-side attorneys can very easily look into a document’s metadata and find out when it was actually created.
Leaving no room to improve
To save themselves some extra work – or perhaps avoid a difficult conversation – some managers will review mediocre employees as excellent or award them a “5” on a 1-to-5 scale. The trouble here is that these excellent reviews leave no room for improvement and, more to the point, these glowing reviews can lead to trouble if this all-star employee is ever fired.
Being indirect in communication
In an effort to perhaps sound more authoritative or even just abide by legal practices, some managers may use legalese to make their requests for improvement (such as saying “heretofore” or “whereof.”) Others, meanwhile, might have a hard time stating what they need, such as telling employees “It would be helpful if you…” Anderson notes that managers should avoid these types of confusing directives and instead make sure instructions are as direct as can be.
Using email too much
Yes, it’s important to create a paper trail, but it helps to talk to employees face to face as well. The goal should be to balance email communication with in-person contact. Anderson points out that 93 percent of all communication is non-verbal, and those cues are missed when documentation is delivered without personal contact, such is the case with email or even a phone conversation>
Inconsistent rule enforcement
If you’re going to punish your poor-performing employee for being late, you must also publish your tardy star employee (unless, of course, there is a reasonable excuse). Anderson notes that the best documentation won’t save you in court if policies and discipline aren’t applied consistently.
Failing to document
Even if you are 100% sure that your employee is going to turn their poor performance around, you must still document problems as they arise – correctly, succinctly and in the moment! No exceptions!