How to Best Document Employee Behavior?

The line between good documentation which serves the employer’s interests and documentation which does not is driven by numerous elements which are discussed below.  Before addressing the ingredients which are evident in good documentation, an examination of why employers document is necessary.

Why document employee behavior?

Provide Managers with a record.  In the absence of perfect memory, managers need to document the good behavior and the behavior needing improvement.  And in those instances when managers believe they have good memories, those memories do not transfer to the new manager.  Good documentation belongs to the employer to assist present management memorialize employee behavior and future management to protect the employer on a long range basis.

Sends the Correct Signal.  When managers catch employees doing things well and not so well, documenting excellent and challenged performance sends to the employee that management notices them.  When employees understand their performance matters, employees are more mindful of their conduct.  On the other hand, when employees believe that managers are going through the motions without scrutinizing good and bad behavior, employees are less likely to care.

Less Anxious Manager.  When managers have a system where information is collected and stored it gives the manager an opportunity to dump that information from their brains and focus on important management stuff.  Moreover, all that information competing for limited brain space if not offloaded creates lots of manager anxiety.  Shed the anxiety by storing the information for later use.

Writing it Down Makes Employers More Objective.   The subjective (I feel the employee is not good) is forced to be more objective (The employee was late 3 times this week) when managers are expected to place on paper a description of employee conduct.  Take another example: “The employee was under the influence of alcohol and therefore sent for for cause testing.”  The better option is to document what is actually observed generating a more objective analysis:  “The employee had the odor of alcohol and was unsteady on his feet needing the desk to stand up straight.”

Courts and Agencies Like Documentation.  Employers that reinforce good documentation of employment events at a time when the manager remembers the details creates stronger evidence than merely remembering the event.  Testimony, plus a corroborating document, is stronger evidence than testimony alone.

How to best document employee behavior?

Where is the line between good documentation which serves the employer versus poor documentation which does not serve the employer or employee?  That line is defined by numerous ingredients which are summarized here.  Note, these comments are focused on the documentation of those incidents in the workplace which may lead to discipline or termination.  Since managers should document employee behavior which will not lead to discipline or termination, not all of these ingredients apply to all forms of documentation.

Timing.   Documentation should be performed near the time of the incident which generates the need for documentation.

Names.   Good documentation includes the name of the person who documents.  That is you.  It also includes the complete names of the people identified in the writing.  There is more than one John and one Sally in the world.  Identify Sally as Sally Smith.

Dates and Times.  As to the incident write out the date as numbers.  Please do not use yesterday or Tuesday or any other substitute for “Peter hit Paul on January 15, 2016.”  Also include the approximate time.  Also record the date you are writing.

Place.   Documentation should include place or places.  The break room is an obvious place to you but not obvious to me.  The third floor employee break room at Slippery Slots Casino is much more precise.

Explain it to Outsiders.   The documentation should make sense to you but more importantly it must make sense to others.  The others are your boss, grievance panel members, unemployment compensation judges and the tribe’s lawyer.

Notice to the employee.    Not every document is shown to the employee but the milestone documents like written warnings, suspensions, and performance agreements are all shown to the employee along with a request to sign the document.  If the employee refuses to sign the document, simply record the refusal.

Stick to the facts.    Managers write “Gus is creating a hostile work environment” and while that is true it is not a fact but instead a conclusion which may be based on facts.  Instead, here is a well documented incident which may, along with other incidents, support the hostile work environment conclusion.

“On April 9, 2016 Gus Isachallenge told me that the three women he supervises should not be employed in male jobs and he is pushing them toward work better suited for women.”

By sticking to the facts, the employer limits allegations of defamation (a falsehood about another that causes them to lose their job or pay) and generates more objective documentation.

Reference past incidents in this document.    Think about where and when you might use documentation of a disciplinary event and you will document in a more comprehensive manner.  For example, if the document is used in a grievance hearing to prove the employee violated the tardiness policy, it is more coherent to be able to show the panel a document which memorializes the seven previous late arrivals along with the progression in discipline in one document.  That document also has a bigger impact on the employee who sees the seven previous tardies and the consequence of an eighth tardy.

Anticipate criticism.    If a manager fails to timely address a workplace dispute, consider explaining why there was a delay.  The explanation can come later but it likely appears less defensive if offered in the course of the documentation process.  For example:

“When Andy Avoidswork came to me on November 11, 2015 to discuss the incident where Audrey Assaultsalot hit him in the face, I was in a car accident the next day and did not return to work for three weeks.  Upon returning to work on December 5, 2015 I talked to Audrey about the incident and this memorandum was written to record that conversation.”

That note anticipates the criticism of delayed documentation of the incident and offers a reasonable explanation for the delay.

Consequences.    Describing the consequences of the incident and the consequences of future similar behavior is a primary purpose behind good documentation.

“You are now being placed on notice that if you fail to follow established policies and procedures regarding calling in sick you may be discharged.  You have violated the policy two times in the last 30 days.  If you violate the policy again in the next 6 months, your employment will be terminated.”

Both sides.    The document contains the employee’s side of the story.

When I discussed the March 2, 2016 incident with Tammy Troublemaker, she stated that Jimmy Humorless told numerous dirty jokes to Tammy before Jimmy objected to the joke told on March 2.  Ms. Troublemaker gave the following specific examples of jokes told by Jimmy over the last three months: insert examples here.

In summary, there are strong policy arguments supporting the merit in employers maintaining good documentation.  Good documentation is comprised of more than just ink on paper.  Good documentation contains the ingredients documented above.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.