As most human resources professionals know, documentation can often make or break an employment lawsuit. A thorough paper record of an employee’s performance problems, complaints, job requirements, attendance, and/or breaks and working time can aid employers when faced with an agency filing or lawsuit. While this paper record may not stop a legal complaint, it can provide critical leverage in settlement negotiations or result in early dismissal of a discrimination or wage and hour lawsuit. A lack of documentation, on the other hand, can result in overtime or vacation wages owed, allow discrimination or retaliation claims to proceed that otherwise could have been resolved swiftly, or constitute violations of recordkeeping laws.
When drafting documentation, best practices recommend it be contemporaneous and accurate. As one employer recently learned the hard way, untimely, contradictory, or “post-hoc rationalization” documentation can be just as damaging as no documentation at all. In Tudor v. Southeastern Oklahoma State University, et al., No. CIV-15-324-C, 2017 WL 4849118, at *1 (W.D. Okla. Oct. 26, 2017), a transgender professor at a state university claimed that she was denied tenure and ultimately dismissed because she was transitioning from male to female. The university filed a motion for summary judgment, arguing that its decision to deny tenure was an appropriate and nondiscriminatory exercise of discretion. The professor disputed this rationale, alleging that the decisionmakers had initially refused to explain why she was being denied tenure, but later placed a letter in her file setting forth specific rationales for that decision. The letter was backdated.
The court denied the school’s motion for summary judgment, allowing the professor’s discrimination and retaliation claims to proceed. The court ruled that, among other things, retroactively documenting the reasons for denying tenure after initially refusing to explain the school’s decision amounted to a “procedural irregularity” that was potential evidence of “weakness, implausibility, inconsistency, or incoherencies” in the school’s asserted nondiscriminatory rationale. The court also pointed to evidence that the school’s evaluation of the professor’s scholarship and service did not match its previously-articulated tenure criteria.
This recent case demonstrates the importance of not only documenting personnel actions, but documenting them effectively. Had the school placed the above letter in the professor’s file immediately, and had the reasons set forth in the letter matched the school’s stated tenure criteria and the decisionmakers’ conversation with the professor, the outcome may well have been different. Appropriate personnel documentation is particularly important in states where employees are entitled to access their (broadly-defined) personnel files upon request, like in New Hampshire, Maine, and Massachusetts. Massachusetts further requires employers to notify an employee when information is placed in an employee’s file that may be used to negatively affect the employee’s employment.
Employers should make effective personnel documentation a priority today, and seek assistance if necessary.