Jordan Ramis pc. Attorneys at law
Employment Management in Three Words: Document, Document, Document
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This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

Spring 2013

What "location, location, location" is to real estate, "document, document, document" is to employment law. Successful management of the employment relationship requires consistent documentation of its management activities regarding employee performance. In many instances, a supervisor forgoes documenting minor performance issues as they arise. Eventually, however, the issues fester or grow more severe. The supervisor then becomes frustrated with the performance of a subordinate employee and seeks to discipline the employee. In such cases the supervisor may consult a human resources manager or an employment attorney for assistance. Unfortunately, many times the human resource manager or employment lawyer will discover that the supervisor has failed to keep an accurate and documented record of the efforts to manage and improve the subject employee's performance. In the worst case scenario, the supervisor takes disciplinary action against the employee, who then challenges the action and the employer is unable to show a documented record in support of the disciplinary action.

The most difficult job for any supervisor is to manage the performance of other people. The job becomes even more difficult for the supervisor who does not document performance issues and action taken to improve a subordinate's performance. When the final straw that breaks the camel's back falls, the supervisor may find that their hands are tied because they forgot, or maybe never knew, the first rule of employment law: If it's not in writing it never occurred.

So why should a supervisor "document, document, document"? To have a clean and clear record of the management of an employee's performance. Such documentation is then available and useful in the completion of annual performance reviews or when deficiencies in performance must be discussed with an employee. Most importantly, the supervisor then has contemporaneous records of the management of subordinates and is not left to try to remember an event or situation after the fact that occurred many months in the past. The top five reasons for documenting employee performance:
  • Creates a contemporaneous record of management action;
  • Creates a record of the time, place, and nature of the event reviewed;
  • Creates a record of the observation(s), evidence, and witnesses, if any;
  • Creates a record of the analysis or evaluation conducted by the supervisor; and
  • Creates a record of the performance improvement plan or discipline issued.
When performance issues are properly documented, the supervisor has an on-going tool to evaluate and improve the performance of subordinates. Employees also benefit because supervisors who regularly document are more likely to manage employees consistently as well. Hence, the supervised employee knows what is expected, has clear direction, and immediate feedback when performance falls short of expectations. In such circumstances, employee morale tends to markedly improve.

The failure to document can often lead to frustration and disruption in the workplace. A supervisor will spend 80 percent of his or her time managing the 20 percent of employees who are underperforming or causing problems in the workplace. But the supervisor will experience significantly more stress or angst when told by a human resources manager or employment lawyer that they can't take their planned action because they haven't kept good records of managing the affected employee. This often results in the supervisor becoming less effective and potentially higher risk to the organization because their frustration leads to mistakes that carry significant consequences, such as retaliation or hostility towards the underperforming employee. When this occurs, the employer now has two problems instead of one.

What should an employer do?
  • First, don't panic. Being forewarned is to be forearmed and plans can be made to mitigate the problem.
  • Second, employers should establish regular training for supervisors and managers that address how to document, what should be documented, and where such documents should be retained. Such training could be a 10-minute segment of regular staff meetings that focus on particular aspects of the management process.
  • Third, employers periodically review supervisor and manager materials to evaluate how consistent supervisors and managers are in applying the employer's employment policies and procedures.
  • Fourth, when deficiencies in consistent application of employment policies and procedures are identified, this then can be the basis for immediate training to correct such deficiencies.
Successful management of personnel can be made easier when a supervisor properly documents, documents, and documents. Proper documentation will provide more consistent application of employer policies and procedures (city ordinances, city charter, etc.), will provide employees with better direction and understanding of what is expected, and will provide the supervisor with the necessary information to support termination if that becomes necessary. As always, an employer should consult with competent employment counsel when taking action that will affect the terms and conditions of employment for any employee.