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Documentation: Management's Best Protection

Thursday, April 20, 2017   (0 Comments)
Posted by: Kurt Tullar, JD, CEDR HR Solutions
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As HR professionals, we hear a lot of excuses when it comes to why an employee’s personnel file is empty or has only vague or outdated notes about his/her performance problems.

“I’m too busy to do paperwork.”
“I didn’t want to hurt her feelings.”
“It only makes him mad, not better.”


But it’s not just paperwork when you have to turn an employee’s personnel file over to a lawyer; it’s your best defense when it comes time to let an employee go for a valid, legal reason.

If you are like many in management, you may be a bit neglectful when it comes to documenting the performance issues of your employees. But when it comes time to terminate an employee or defend against a complaint, a busy schedule or a desire to avoid hurting someone’s feelings won’t overcome the employee’s allegations of workplace discrimination or wrongful termination. That’s why all of us at CEDR HR Solutions are always preaching, “Document, Document, Document!”

The quality of your documentation goes to the heart of your credibility as an orthopaedic practice manager. The person reading your documentation should walk away knowing who, where, when, how and, most importantly, the why behind any decision to fire an employee. Think of it as written proof that you treated the employee consistently and fairly, and you let the employee go based only on legitimate business reasons. Anything less and your documentation becomes Exhibit A for the plaintiff.

Follow these practice management tips to ensure your documentation is effectively providing the protection you need for your practice.

1.  Be Specific.  Your documentation must be direct. It should include specific performance expectations and the reasons the employee is not meeting those expectations.  Clarity and detail are the keys to achieving your dual purpose of documenting your legitimate reasons for concern, as well as giving the employee the best chance to improve.  Vague references to “attitude” or “not meeting performance objectives” should be avoided.  For example, instead of saying “Be more careful,” say “Take your time when entering information and check your work after each entry.”  Instead of saying “Has a bad attitude,” say “Rolls her eyes during meetings, fails to assist others when asked, and was argumentative in front of a patient.”

2.  Use Facts, not Opinions or Characterizations.  It’s not called “human” resources for nothing!  It’s understandable to feel frustrated, angry, or to have favorites.  Sticking to the facts in your writing helps remove your emotion or bias from the situation. For example, instead of saying “You’re too negative,” say “I heard you say ‘I hate my job’ and ‘this procedure is stupid.’”  Instead of saying, “You’re always late,” say “You were 10 minutes late four times in the last month.”  Note that words like “always” and “never” are over-inflammatory and easily defended as untrue.  The more fact-based you are, the more credible you are.

3.  Document EVERYTHING. Even if it’s a small exchange between you and the employee, take a few moments to write down what you asked the employee to improve upon and his/her acknowledgement (or lack thereof) and file it away in your employee’s personnel file.  You would be amazed how quickly the little things add up to create a bigger picture.

4.  Follow up.  Your objective is to demonstrate that the employee was made aware of the problem and given a reasonable opportunity to correct it.  Writing someone up in a corrective action or evaluation, and then leaving them hanging without checking back in on the situation for six months, tends to show you were more concerned with covering your bases than actually helping the employee succeed.  So follow up and let them know where they stand within a week or two.  Then, make a note of the date and the context of your conversation and efforts to work with the employee, noting any progress or lack thereof.

The bottom line is that no termination or layoff should be a surprise.  The more you can show documentation to demonstrate your efforts to work with the employee, the fairer and more justified your decision will look to a judge or jury.

Good luck!

About the Author

KURT TULLAR, J.D., SOLUTION CENTER MANAGER

Kurt Tullar is a licensed attorney with more than 10 years’ experience as a litigator and compliance officer. He is also the Solution Center Manager at CEDR HR Solutions, the nation’s leading provider of customized employee handbooks for healthcare practices. He has extensive experience navigating the ever-shifting web of state and federal employment laws, and enjoys working with doctors and their office managers to solve their workplace problems. Contact him at info@cedrsolutions.com or 866-414-6056.


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