“Met with her again regarding the same issues. JT told me he’d had the same conversations.”We needed to show that the former employee, Rose, had been terminated for poor performance issues and not her age or race. She claimed she’d never been told of performance issues. I, however, was not thrilled with these performance review documents, especially after asking the client: “Who wrote these?” The client didn’t know. The performance review documents were found in a file in a desk occupied by one of Rose’s former managers, with “Rose” scrawled on top of the file.“Why did she think the performance review documents applied to Rose?” Her response: who else could they be referring to?“Who is JT? Is that person still employed?” My client thought that it could be Jane Thatcher, who had died. Or possibly Joanne Taylor, who moved. Maybe John Titus or Jason Thorn, both of whom had worked in Rose’s department.Instead of being helpful, this performance review documentation, potentially vital to an employer’s defense against an employee’s discrimination claim, is practically useless because it is incomprehensible. If only they had been properly drafted, there would be the potential that these employee evaluation documents could have won the case for the employer! But as provided to me, they were useless.
When your managers document employee behavior or performance, they are writing for a future reader who does not know the players. Nevertheless, that future individual should have no questions about the events in the employee evaluation document, including knowing who wrote it and who it is about.
So that you do not fall into the traps into which this client dived, here is some guidance for how to get it right: Sign the employee evaluation or performance review document with your full name and job title: Remember that a future reader might not know who you are, let alone who other players are. Too often internal reports are unsigned, or signed with initials only. This can be especially troubling if the report is typewritten so that there is no handwriting to use as an authorship clue. Past authors have often left the company at the time of a future lawsuit and documents remain unidentified. A typed “signature” is better, but insufficient—anyone can type a name.Identify the person the performance review document is about: “I’ve spoken with her repeatedly and still her performance does not improve.” “She was late again on Monday.” While the author may presume that future readers will understand that a report in Samantha’s file was written about Samantha, that report may be separated from the file in the course of a lawsuit or otherwise. Performance review documents should stand on their own and be understandable without reference to the file in which they were stored or otherwise.Identify the people in the employee evaluation report by full name and job titles: Referring to colleagues and co-workers by initials or nick-names may be understood at the time but become incomprehensible in the passing years. Don’t write “BJ told me that Robert turned in the report not only late, but incomplete.” State that “Bruce Jay Sanford (BJ), our project manager, told me that ...”Do not abbreviate job titles unless generally understood, and even then be cautious: Everyone knows that CFO means Chief Financial Officer, right? Or does it mean “Central Files Officer”? Or “Chicago Facility Operator”? Or “Company Flight Officer”? It could mean anything particular to your business. Always define an abbreviation (especially a job title) the first time it is used in a memo or employee report.Do not use “company slang” without explanation: Your copies of sales receipts may be called “pinks,” from by-gone, multi-layer invoices, despite the fact that they are no longer pink. Similarly, the action to log them in a customer’s account may be called “Josephing,” after a long-gone, long-term employee who performed that function. However, writing an employee up for “failing to Joseph the pinks” will be incredibly confusing to anyone (perhaps even a future company manager not clued into the slang) who later reads that report.Do not fall into these traps that can render potentially vital documents unusable in the company’s defense, giving your defense counsel unnecessary headaches. Train your managers to identify who they are writing about when documenting employee performance reviews and conducting employee evaluations so that reports and memos become assets to the company and not liabilities down the road.
Devora L. Lindeman is a Partner with Greenwald Doherty LLP, a labor and employment law firm exclusively representing management in relationships with employees and unions, with offices in New York, New Jersey, and Connecticut. She provides management training to employers and employer associations on these and other topics. Lindeman joined Greenwald Doherty in 2007 with many years experience in management-side labor and employment law. Previously an attorney at Proskauer Rose, LLP, she divided her practice between human resources consultation and court and agency litigation. Lindeman spent a number of years at a labor and employment boutique firm prior to that. Since she has a business background, she understands employers’ needs and works with them to creatively solve employee issues. Much of her practice involves counseling clients on issues that arise daily, such as responding to workplace discrimination or harassment complaints, dealing with wage and hour compliance issues, accommodating individuals with disabilities, dealing with leave laws such as the Family and Medical Leave Act and routinely addressing the other myriad of situations that arise on a daily basis when one has employees. She also reviews and drafts employee policies and handbooks and assists employers with employee agreements, such as non-compete and confidentiality agreements, as well as those involved with reductions in force. Lindeman lectures to trade and business associations on various employment law topics.
Lindeman received her undergraduate degree from Sarah Lawrence College and graduated from Rutgers School of Law—Newark with Highest Honors. During law school, she served as the Notes & Comments Editor for the Rutgers Law Review. On graduation, she was inducted into both the Order of the Coif and the Order of the Barrister. She then clerked for the Honorable Stanley R. Chesler, U.S.M.J., in the District of New Jersey. Lindeman has practiced management-side labor and employment law ever since. She is admitted to practice in New York and New Jersey.
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HRNY 04/30/2010 12:21:45 PM EDT I am a Director of HR for a manufacturing co. with union members working under a CBA. A number of years ago as an HR Manager, I learned the hard way through arbitration that flimsy documentation like you illustrate - hurts, not helps, in working to get a result in our favor. Sure, managers and supervisors find this tedious and most of all time-consuming, but when you need it the most there is a payoff. 
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DLindemanEsq 06/11/2009 5:47:51 PM EDT R: I've not lived in an ivory tower, if that's what you're getting at. I've milked cows and cleaned other people's toilets (not in the same job), and had a number of other careers before becoming a lawyer. I understand that on-the-job realities sometimes devalue the importance of proper documentation, but have you ever had to defend an employer that was facing a 7-figure judgement in a lawsuit for lack of any, let alone appropriate, documentation? D. Lindeman Replies (0)
sevenby54 06/02/2009 1:52:55 PM EDT Ms. Lindeman, Have you personally had to fire or release a fellow co-worker? Have you had to keep personnel files on hundreds of employees in a union environment? Have you ever held a position in manufacturing? Interested in your candid response? Thank you, R. Snyder Replies (0)
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