Despite the popular saying, possession is not 9/10ths of the law. Judging by my desk, if anything is 9/10ths of the law, it’s documentation.
Lawyers are always asking their clients for documents. But in the real world (or so I’ve heard from people who claim to have been there), it’s not realistic to ask managers to document every conversation with an employee. So how should a manager decide which discussions to document? These six factors will help you decide.
- Is the employee using buzzwords? If there’s any mention of “discrimination,” “retaliation,” “harassment,” or the like, you’d better document it. I’ve talked about how the definition of “hostile work environment” has been stretched beyond recognition. But if it’s mentioned, better document that, too.
- Does the employee sound like he or she has been researching what the law is? Does the employee keep mentioning “legal rights”? If employees even hint that they may be considering some sort of claim, you want to document what was said.
- Is the employee subject to pending or imminent corrective action or a layoff? Retaliation is an adverse action by the employer in reaction to protected activity by the employee. If some type of adverse action is or may be iminent, you will want documentation of what issues the employee raised and when.
- Is the employee’s performance or behavior getting worse? Managers don’t like delivering bad news. Who does? But if you’re seeing a trend in terms of worsening behavior, it’s best to document it at the start.
- Are accommodations for a disability being discussed? The law, especially in California, requires employers to engage employees seeking accommodation in an “interactive process.” Document it.
- Does this seem like the kind of thing you might need to remember details of a few months or years down the road? This is the catch-all. Savvy managers should have an idea of which discussions are most likely to become important later. If you don’t have that, err on the side of documenting.
It’s not unheard of for managers to be deposed about events or conversations that occurred five or more years earlier. Imagine the sense of relief when a discussion has become the subject of litigation and you find your notes of what was said all those years ago. You’ll definitely make your lawyers happier – which I think is a goal more people should strive for.