At a recent Maine Human Rights Commission hearing, one of the commissioners pointedly asked one of the parties, “if this was so critical, as you’re saying, why isn’t it written down somewhere?” The employer’s HR Director had no answer. The employer lost the case, in part because it had failed to engage in the interactive discussion required by the Americans With Disabilities Act and in part because it had not documented anything about why it had fired the employee.
January resolution for businesses with employees: audit your documentation practices (and training/feedback to supervisors) using the following guides.
Have one or more employees? Then make “document” into a verb.
All you need is one employee to be covered by the Maine Human Rights Act as well as a number of other state and federal laws. To protect yourself from claims against you, you will need to “document” what happens with that employee; for example, discipline needed, attendance, work habits, hours, money paid, and important communications with them. The time taken now is a lot less time and expense later . . . It is all about reducing risk. Documentation in a file need not be fancy but it should be readable, professional in tone and language, and done at the time of the events it describes. It’s ok to document behavior later on but best to do it at the time.
Be accurate, proofread, get your facts straight, and check your sources when writing up something about an employee, especially paperwork about discipline or termination. Errors in the document you write up not only create a distraction from the point of what you’re trying to document but also can lead to claims later that the documentation about bad behavior is just as inaccurate as your dates or other details you didn’t get right. Let’s say you are writing up a warning for an employee and you get your dates wrong on when they were a no-call, no show, AND you have a couple days in there when the employee actually worked. If the issue ever went to a court or the Maine Human Rights Commission, it’s going to be harder to find your write-up reliable and believable when it has so many mistakes.
I had a case where the employee was fired for “lack of professionalism.” That was it for detail. The employer lost at the unemployment hearing because the documentation was so vague and the attempts to explain it later sounded weak because it hadn’t been provided the first time around. The employee had actually failed to follow a client’s treatment plan, had gotten involved in the treatment of a person not their client, and had purposefully undermined the treatment by giving the client what that employee thought they should have, contrary to what the doctor had advised. That may be “lack of professionalism” but a term so vague gave the hearing officer at the Department of Labor no idea of how serious the problem really was. Spell it out. So, instead of writing “the employee used poor communication skills,” write “the employee shouted ‘f— you’ to a supervisor when asked to re-do her filing work” or “the employee failed to give accurate directions to employee X, leading X to leave the vault unlocked, and failed to check that all locks were activated.”
Tell the truth.
It doesn’t help to embellish details to try to ensure that someone won’t get unemployment and it is equally unhelpful when an employer sidesteps what happened in order to allow the employee to get unemployment. It’s nice to want to make sure the person receives some income but white lies can come back to bite you when the employee then files a claim at the Maine Human Rights Commission and points to your nice dismissal letter as proof that the real reason they were let go was because of bias and not bad conduct.
This article is not legal advice but should be considered as general guidance in the area of employment and corporate law. Rebecca Webber is an employment attorney; others at the firm handle business and other matters. You can contact us at 784-3200 (telephone). Skelton, Taintor & Abbott is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine. It has been in operation since its founding in 1853.