CHICAGO — Who sits on a jury in an employment law case? “Twelve pissed-off employees,” according to Allison West, founder of Employment Practices Specialists, a workplace investigation and compliance training firm.
While the observation generated a laugh at her Monday afternoon presentation at the Society for Human Resource Management’s annual conference, West spoke from years of experience as an expert witness in the courtroom.
“These are very relatable cases,” she said. “Why do you think the majority of employment cases settle? It’s simply too risky to bring it in front of a jury. Everybody knows somebody who’s been harassed, discriminated [against], had a poor manager, wasn’t treated what they perceived as fairly.”
All the more reason for careful and thorough documentation, West explained. Over the course of an hour, she walked an audience of HR pros through seven elements that can perfect a piece of HR documentation.
1. Describe the expectations
Documentation should include the employer’s expectations with a high degree of specificity. “Show up on time,” for example, is too vague; “Your job begins at 8 a.m., at which time you should be at your desk,” on the other hand, is much clearer. “Don’t wear inappropriate clothing” is too vague, while “Business Inc.’s dress policy includes business casual attire” is clear.
While the idea may be simple, it can be hard for managers to articulate. “When I do documentation training, we literally spend 45 minutes on the expectation because it is the hardest thing to write,” West said. “Managers will usually get right to what the behavior is that isn’t appropriate … But we don’t know what their actual expectation was.”
2. Describe the behavior that must change — or must continue
If addressing the need for performance or behavioral improvement, explain the particular actions the employee should take to achieve workplace expectations, West said. For example, if a rude worker needs to change their behavior: “During a meeting on April 8, 2024, you interrupted your colleague Mark two times and rolled your eyes at his suggestion.”
Observations should be job-related and objective, reflecting on the conduct and not the individual, West said. “Not enough effort,” “not proactive,” and “lack of ownership” were all among the phrases she cited as too vague to be useful.
3. Include an explanation from the employee
While documentation can quickly and frequently take on a reprimanding quality, employers should include positive elements as well, West said: what the employee is doing right, for example.
It should also include the employee’s explanation for the behavior being recorded. West told a story of an early client who wanted to fire an employee for repeatedly being late — only to find out, after she encouraged the client to ask about the behavior, that the worker was completing a training at another building on the campus to help advance her career and had worried about divulging the information.
Seeking employee explanations may correct employer assumptions, show fairness and provide an opportunity to fix whatever is causing the problem.
4. Detail the action plan and goals
Following a description of a problem and an employee explanation, the employer and employee should come to agree on an action plan. “That shows what the manager is doing to help the employee be successful,” West said. It also provides a specific expectation the employer can point to.
For example: “As stated in our meeting on June 9, 2024, I will talk to the shipping department on the 20th of the month to be sure they allow your order to go through. You will reach out to me on the 25th to let me know if the order went out.”
5. Include time expectations
Workers should have a sense of how soon HR expects their behavior to change or a performance goal to be met. Avoid “immediately,” “right away,” “ASAP,” “soon,” and similar time framings, which are ultimately vague, West said. “People from different cultures have different definitions of things as well,” she noted. “It doesn’t always translate.”
“You will meet your report deadlines by Sept. 1,” on the other hand, is clear.
At the same time, employers should be realistic that certain kinds of change may take time, particularly if workers need to learn a new skill. “I’ve seen many cases where it looks like you’re setting the employee up to fail,” West said. “You’ve given them so many things that they have to master in such a short time … [it’s] just not really feasible or humanly possible for them to get that done. So really what the jury is going to see is unfairness.”
6. Follow up on the plan
“This is where I do see a huge gap,” West said. “The follow-up is really critical to fairness. And I don’t see people following up.” Employers can (and sometimes should, West said) be open and flexible with expectations and the action plan, but both require following up so employees know where they stand.
The follow-up should include checking in with the employee on their progress, asking again for their own explanation of how the situation is progressing and checking in about other resources or support the employer might be able to provide.
7. Outline the consequences
Finally, West said, employees should have a sense of the consequences that may arise from not addressing the issue. While it should be on the table, consequences should be used “deliberately and sparingly,” she said. When the employer is still in the coaching phase, for example, and the employee hasn’t yet had a chance to improve, it isn’t time to discuss consequences.
At the same time, employees should not be shocked by the consequences of failing to meet expectations, whether that results in failing to get a bonus, a demotion, or termination.
Ultimately, employers should imagine another reader — specifically an outside reader — when writing documentation. “Prepare your documentation for a factfinder,” West said. “That is a way to make sure that you’re being a little more pristine. It’s clear, it’s objective, it’s unambiguous, it’s consistent and it’s fair.”
