FOR THE REST OF THIS WEEK AND NEXT, WE ARE GOING TO TALK ABOUT DOCUMENTATION OF PERSONNEL CONCERNS. FIRST OF ALL, LET’S REMEMBER THAT THERE IS GOOD DOCUMENTATION AND THEN THERE IS BAD DOCUMENTATION.
But before we get into that, we have to offer a mea culpa. Yesterday’s Dawg claimed that March 2nd is President Lincoln’s birthday. NOT! As most of you know, March 2nd is Texas Independence Day. Lincoln’s birthday is February 12. The Dawg hangs his tail in shame. We shall be more observant of what Dawg Bone is sent out on which day in the future. Now…on to our topic for today!
The lawyers are fond of telling you “Document. Document. Document.” That’s good advice. But we need to always keep in mind that documentation will either make you look good or make you look bad. You want documentation that reflects that you are a wise, prudent, fair minded supervisor, holding your staff to high (but fair and equal) standards. Unfortunately, some documentation does not reflect on us so well.
Here’s an example: We expected better behavior out of a WOMAN of YOUR YEARS. Your conduct was hardly in keeping with your CHRISTIAN values. I thought that your HEART ATTACK last year would get your attention and lead to an improvement in your performance.
I made that one up to demonstrate that it is possible to give a plaintiff four causes of action in a three-sentence memo. If this lady is nonrenewed or terminated she will use this memo to claim discrimination based on 1) sex; 2) age; 3) religion; and 4) disability.
Here’s an example that is not made up: in Mayeaux v. Houston ISD (2014 WL 1340083, S.D. Texas 2014) an at-will employee was terminated for mishandling funds. However, there were corrective memos in her file that also mentioned her excessive absences from work. Those “excessive” absences were all due to her military service. Absences due to military service are “protected,” meaning that they may not be used to justify an adverse personnel decision. The mention of the military-related absences was like a skunk at the garden party. It was enough for the court to refuse to dismiss the case. The court said that Ms. Mayeaux was entitled to a trial to prove that her service in the National Guard was a motivating factor in the district’s decision. Thus the “bad documentation” created by the district came back to haunt the district.
So don’t be writing people up based on factors that are legally protected, such as race, gender, religion, active military service, or a health condition that does not impede performance. That’s the essence of what we mean by “bad documentation.”
DAWG BONE: NOT ALL DOCUMENTATION IS GOOD.