Sally, an operations director, is frustrated with John, an employee on her team who uses foul language, publicly berates subordinates and demonstrates intimidating behavior toward co-workers. She prepares a final written warning for inappropriate workplace conduct, and because she wants the employee to understand how serious the situation is, she notes that John intentionally harasses people on the team and creates a hostile work environment.
Could that sort of documentation come back to haunt Sally and her company legally? "There are two common errors that leaders make when documenting investigations," according to Sam Sherman, employment defense attorney with San Diego law firm Tencer Sherman. The two errors—typically committed when drafting performance reviews and documenting disciplinary action—are codifying the damage and using mental qualifiers.
"They're fairly easy to avoid, though, if you're aware of them and understand the logic behind the damage they can cause," Sherman said.
Avoid Codifying the Damage
Many well-meaning leaders place their organizations at risk by not thinking through the significance of their corrective action documentation. For example, if, in the documentation, it says that an employee "sexually harassed" or "retaliated against" a co-worker, those phrases could later be used against your company as a concrete, documented fact. "'Sexual harassment' is a legal conclusion," warned Sherman. "If you confirm in writing that sexual harassment has indeed occurred, then your own investigational documentation may become prime fodder for a plaintiff's attorney looking to find proof of a supervisor's inappropriate actions."
As another example, if it is written that a loan administrator "mishandled a pool of loans" by failing to follow appropriate mortgage banking guidelines, then this documented information could become evidence of neglect and mismanagement on your firm's part if that pool of loans never gets sold on the secondary mortgage market or otherwise becomes discoverable to stock investors.
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