Forgot to Mention One Little Thing: Santa Baby and Complete Accounts of Employee Misdeeds

In the holiday song that I most often picture sung by the woman portrayed in Madonna’s Material Girl, this year my mind shifted away from diamond rings and men with the “cold hard cash” to what occurs when we “forget” to add something to our list. While the forgotten item on a Christmas list may lead to childhood tears or other disappointments (don’t worry folks, I expect neither a diamond ring nor a man for Christmas), the forgotten “incident” on a review has a much more serious consequence.

When speaking to clients we consistently advise to “document, document, document.” When companies ask me about litigation risks related to a termination, my first question after hearing all the facts is always, “are all these performance concerns documented?” Followed closely by: Do we have written evaluations that set forth behavior or performance misdeeds? Do we have performance improvement plans or other written documentation that supports that we have warned this employee that his or her behavior was not meeting expectations? Whether those notes are written on slips of paper, a journal, a napkin, or formally documented in a file that lists the date and time of incidents and discussions, those documents will be relevant to support any future defense in litigation when an employee claims that they were discriminated or retaliated against by the company.

Too often I hear from clients that in addition to what was listed in the review or the performance improvement plan there were other concerns, but the Company simply did not list them or talk to the employee about them. On cross-examination by Plaintiff’s counsel when the company and I are litigating the case together, Plaintiff’s counsel is going to ask the hard question: WHY? And they are going to spin that question to make it look like the company did not want the employee to succeed. That the company was “hiding the ball” and attempting to create a reason to cover-up an illegal termination. Accordingly, when you are dealing with employees who are under-performing or who are experiencing other behavioral issues in the workplace, don’t forget “to mention one little thing.” Because in the long-run, that little thing could have serious implications in terms of settlement figures or verdicts if the situation is ultimately litigated.