The Sharpie and Employment Litigation Documentation

The last week has been filled with news broadcasts, jokes, and general discussion of the use of a Sharpie to extend the path of movement of Hurricane Dorian in a map presented during a news broadcast given by President Donald Trump. What, you may ask, does this have to do with labor and employment law? It’s not a piece in which we will discuss the hurricane’s actual movement, the data underlying the map, or the general response to the map, but instead, a discussion of the lessons HR professionals can take from the situation.

The specific take away? Do not alter the data. What does this mean when you are seeking the advice of counsel related to a thorny labor or employment matter?

• Tell counsel the good, the bad, and the ugly when you call and ask for advice. Counsel will choose what information is inapplicable, but they can’t make that determination until they have the information.
• Do not back-date documents. Counsel will ask what documents are available. Did you document the written warnings? What proof or evidence do you have to support that these events occurred? If nothing was created at the time of the incident, that doesn’t mean that counsel won’t ask you to document the experiences to the best of your ability now—but do not back-date the documents to make them appear as though they were created closer in time to the event.
• When performing investigations be mindful of the context in which you are asking for information and who is in the room. If you ask a complainant about a situation when the alleged offender is sitting in the same open space—there’s a good chance that the information you receive from the complainant will not be the whole truth. This may not seem like “altering the data,” however the data could be altered as a result of the circumstances you have created.
• Is the information that you are sharing something that needs to be in writing? Is it something that you want to be an exhibit in any future litigation over the matter? If President Trump had noted that the Hurricane was going to hit Alabama, but the map didn’t extend the path of the hurricane would we still even be talking about this issue?
• Do not back-date documents. (This is so important we are listing it twice). Did you forget to get out FMLA paperwork timely? Live and learn. Get the paperwork out as soon as possible, but do not back-date the documents.

Litigating employment matters is never an easy task. It’s emotional, time consuming, and a drain of resources. (I mean, I love it, but I know that most clients don’t). Make sure that you and your team are well-protected, and if your company does find itself in litigation, you don’t experience a “sharpie-gate.” For more information on best practices related to employment litigation, contact Tawny Alvarez or another member of Verrill’s Employment & Labor Practice Group.