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June 26-29, 2011Las Vegas, Nevada

DocumentAllison West, Esq., SPHR

SHRM 2011 Annual Conference & Exposition

DOCUMENT.DOCUMENT.

DOCUMENT.

Or create your documentation for Or create your documentation for Or create your documentation for Or create your documentation for

the plaintiff’s attorneythe plaintiff’s attorneythe plaintiff’s attorneythe plaintiff’s attorney

Importance of Importance of Proper DocumentationProper Documentation

�Creates credibility

�Shows fairness and consistency

�Allows opportunity to see your decision in b&w decision in b&w

�Self-check and self-reflect

�Exhibit A at trial

Documentation DownfallDocumentation Downfall

� Inadequate and / or inappropriate conclusions of fact or law

�Threatening or accusatory

Incomplete, ambiguous � Incomplete, ambiguous

�Done in retaliation

�Papering the file to support employment decisions

GENERAL BULLETPROOF

GUIDELINES

Documentation Do’sDocumentation Do’s

�Create contemporaneous documents

�never back date documents

� include date

include full name(s) at least once, then initials � include full name(s) at least once, then initials or first name ok

�When possible, obtain employee’s signature to verify the discussion and goals

Documentation Do’s...

�Know your goal(s)�Think before you write�Go for the facts, don’t make assumptions� Include all important facts, paper is cheap�Be concise (ignore rule that paper is

cheap)

Documentation Traps

�Assumptions�Do you have all the facts�Did you get the employee’s explanation?

�Exceptions�Exceptions�They happen, can you back it up?

�Too informal� Incomplete

�Absolute expressions unless completely accurate - such as �always

�never

AvoidAvoid

�never

�every time

�invariably

Avoid

�Inflammatory phrases�You should know better.�At this point, I don’t think you’ll ever get it.�You really should get your resume in shape.�Everyone else on the team gets it but you.�Everyone else on the team gets it but you.�You are dragging our department down by

failing to make your quota.

Avoid

� Sarcasm� You might actually be the only person in the

history of our company to never get a performance bonus.

� Clearly, you don’t care.� Clearly, you don’t care.� Do you really want to work here?� I am not surprised by the quality of your work

product.

Avoid (if possible)Avoid (if possible)

�Starting sentences with you or your�You don’t carry your load. You are not committed

to your job.

�I noticed on three occasions your team members asked you to assist them with members asked you to assist them with updating the newsletter mailing list. Each time you refused. You may not realize that each time you say “no” without any explanation or fail to carry an even workload, the team members get frustrated and are forced to take on extra work. How would you feel in their shoes?

Avoid

• Editorializing– Beth explained she was late, again,

because of car problems• You write:

– Late again. More lame excuses.

– Jorge is struggling to understand the new accounts payable software.• You write:

– Unwilling to put in the time to master the software.

Facts are Your Friends

�Editorializing�Hurts the writer’s credibility�Shows bias�Uncaring about employee’s issues or success�Jury will snarl at you�Jury will snarl at you

�Stick with the facts�Neutralize your tone�Keep emotion out!

• “As you know” memos– Skimping on the details simply because

you may have previously discussed issues– Typically vague and ambiguous– Open to interpretation

“As You know” Dilemmas

– Open to interpretation

• Bulletproofing means including details and important facts

Huh?

�As you know, we have discussed your attendance on numerous occasions. Each time you stated you would try harder.

�As you know, we are very happy that �As you know, we are very happy that you continue to meet your widget production quota. Keep it up!

The E in Email =

�Every word you write is evidenceevidence�Every exchange counts as

“documentation”�Read it, proof it, read again before hitting

sendsend�Tone�Humor�Google lessons

Scary Words

andPhrasesPhrases

Scary Words/PhrasesScary Words/Phrases

�Overqualified�Red flag for discrimination�Candidates who meet minimum

qualifications should not be eliminated at this stagethis stage

�Job hopper, unfit, can’t hold a job, is “finding himself”

�Overcommitted�Has kids and won’t stay late

• Lacks skills necessary to do the job– Bob lacks the skills and ability to meet the job

challenges.– Plaintiff’s view: Bob is not the kind of person we

would want to spend the time and energy training


would want to spend the time and energy training because of his age, race, etc…

– Detail exactly why the applicant is not qualified• Bob has not created excel spreadsheets.

– Comments must be objective and based on job requirements.

�Does not fit in or not a culture fit�Sandy is just not a good fit for our organization.�Bill’s skills are not a good fit for this job. �Margie will fit in just great with the team!�Plaintiff’s view: Not as cool as the rest of us


�Plaintiff’s view: Not as cool as the rest of us�Red flag for discrimination�Google!

Scary Words/PhraseScary Words/Phrase

� Advancement concerns� Heather has never been promoted...red flag.

�Plaintiff’s View: Wasn’t willing or aggressive enough to step on some heads to get to the enough to step on some heads to get to the top.

� Could be a legitimate reason� Focus on reasons

Scary Words/PhraseScary Words/Phrase

� Insubordinate� Heather has never been promoted...red flag.

�Plaintiff’s View: Wasn’t willing or aggressive enough to step on some heads to get to the enough to step on some heads to get to the top.

� Could be a legitimate reason� Focus on reasons

What the words really mean…

� Not communicative� Plaintiff’s view: Couldn’t answer the question,

viewed as a loser, wasn’t given a chance� Better way: Was unable to provide answers

concerning interactions with boss or did not concerning interactions with boss or did not expand on responses about interactions with manager

What the words really mean…

� Not loyal� Plaintiff’s view: Not going to stick around, didn’t

care about explanation� Better way: had opportunities to promote but felt

he could continue to learn with current boss or he could continue to learn with current boss or other positions

DESCRIBE THEBEHAVIOR or

PERFORMANCETHAT MUST CHANGE

OR THAT YOU WANT TO CONTINUE

Keep it Up!

� “Continue” statements�When employee is meeting or exceeding

expectations ask:�What is the employee doing right? �What is the employee doing right? �Why is it the right thing to do? �How much do you appreciate it? �What do you expect the employee to do in the

future?

Keep it up!

• Expectation: All inmates in the SLAMMER Program are required to produce 12 license plates per month.

• Ernie, for the past three months you have exceeded your quota by 3 license plates. We noticed you created a new process We noticed you created a new process which allows the paint to dry quicker. Your initiative allows us to exceed our overall goal by 15%. We applaud your efforts and encourage you to keep up the good work.

Continue, Carry On, Maintain, Persist

• What is the employee doing right? – Behavioral, measurable, observable

• Why is it the right thing to do? – Impact on goals, learning

• How much do you appreciate it? • How much do you appreciate it? – Express value, rewards

• What do you expect the employee to do in the future? – Goals, sharing knowledge

Fix it!

�“Improve” statements�Did you

�Explain the expectations�Describe how the expectation has not

been met�Get the employees explanation why they

are not meeting expectations�ABSOLUTELY critical

Fix it!

� “Improve” statements� Did you

�Get employee’s solution� More committed to improving if they

participate in solutionparticipate in solution

�Explain what you think the employee must do to correct the problem

�Offer to help the employee

Fix it!

• Issue: You need to learn how to handlecustomers better.

– You could improve your effectiveness and best prepare for future growth by concentrating on learning to handle customers better by attending a learning to handle customers better by attending a seminar on customer service.

– On two occasions last week, May 3 and 4, you were heard telling a customer in a snippy tone, “Just a polite reminder...you called me.” We expect our associates to treat our customers with respect, even if they are wrong.

Fix it!

• You need to learn how to handle customers better.– We expect all associates to treat our

clients with respect. You were overheard...Can you tell me what was going on? How would you handle it going on? How would you handle it differently in the future? What can I do to help?

In the beginning...

Writing “new" statements When new goals are assigned, make sure to

Explain the expected change or goal Explain what the employee has to do to respond to Explain what the employee has to do to respond to

the changes/goals Offer assistance to help the employee adapt to the

change/goal

Brand New

• Ernie, because of your initiative we are now asking you to assist the shipping department with the final products. Our expectation is that you will finish your expectation is that you will finish your production quota and in the last 30 minutes of the day work in the shipping department. We encourage you to come up with a process or procedure that works for you. I am happy to assist you in any way I can.

Action not ReAction Plan

Be SMART. Describe what the employee should know,

not who the employee should be. Contain concrete details. Contain concrete details. Use active verbs, not passive verbs (e.g.,

“Emily will sell 20 widgets per week” not “20 widgets will be sold per week”).

Provide a deadline for completion, if applicable.

Action Plan

� Who� Will Do What� By When� By When� Follow-up date/status

Notetaking 101

Notetaking 101Notetaking 101

Few people realize how fast memory fades. Studies on memory have shown that, without

review, 47% of what a person has just learned is forgotten in the first twenty minutes learned is forgotten in the first twenty minutes

and 62% is forgotten after the first day. (University of Texas at Austin).

� Think of different ways to write / say things so long as accurate

� Repeat back what the person said� Testimony:

� My boss came in to my office and gave me elevator

Practice, Practice, Practice

� My boss came in to my office and gave me elevator eyes. I was embarrassed and he said, oh come on you know you are flattered.

� Incident #1� Boss in office – elevator eyes� BL embar.� Boss “oh come on u kno ur flattered”


� Clean page for each interview, meeting, discussion

� Write on one side of the paper only. You can set them out side-by-side for easier reviewing set them out side-by-side for easier reviewing

� Leave blank spaces. This allows you to add comments or note questions later.

� Fill in key words and questions in the left-hand column

Notetaking 101

� Review your notes within 24 hours.� Take your time. � Ask the witness, employee, interviewee to

slow down� Improve your listening skills� Get definitions


� "Never use a sentence when you can use a phrase, or a phrase when you can use a word" (Berkeley).

� Develop a system of abbreviations and symbols you can use wherever possible.you can use wherever possible.

� Skip any unnecessary words such as "the" and "a" in your note taking

� Eliminate vowels in words

Abbreviate

�Bob came into my office, sweating, he stood over my desk and then starting pounding on my head.�Notes: Bob in BL office, sweating, over desk,

pounding on BL headpounding on BL head

�Twice a week our team meets at 10:30-11:00 for status on upcoming conference

�Notes:�2x wk team mt @ 10:30-11, 4 status on conf.

Investigation Notetaking

�Diagrams, drawings, �Cast of characters�Chronology of events�Tag your documents and ID them at the �Tag your documents and ID them at the

bottom right�Practice writing and looking at someone –

messy notes, but you can clean them later

Investigation Notetaking

� Summarize� Review notes during the interview

Remember

� Document for a third party review� Proof your documentation� Don’t be afraid to edit� It’s not final, until...� It’s not final, until...

Thank you!Thank you!

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