WASHINGTON – Documentation can make or break an employer's defense if it finds itself defending a lawsuit, but it has to be done right, according to Allison West, principal at Employment Practices Specialists.

When facing a discrimination claim, for example, a lack of documentation can itself be a problem, she told attendees at the Society for Human Resource Management's Employment Law and Legislative Conference Tuesday. It says to a jury that the employer didn't care enough to memorialize what was going on, and that's not a good look, she said — after all, most jury members have been or are employees.

But even when documentation exists, employers can run into trouble. From vague feedback to snarky comments, there are plenty of potential pitfalls, West said. But HR can help, and manager training on 10 common mistakes is a good place to start.

1. No documentation.

A lack of documentation will surely set an employer up for problems down the road, West said. Managers often think they'll remember their coaching and feedback, but they're busy, she said; "You can't remember everything."

So it's up to HR to make clear that memorializing discussions and events doesn't make someone a weak manager. In fact, it can bolster their perspective to a jury, she said; "You want that manager to know: 'Your credibility is on the line if you don't document.'"

Some managers don't know where to start, and HR can help with that, too. Encourage them to use bullet points, West suggested. Teach them to get the employee's full name in there, and document everything from the very beginning. Documenting a performance problem only after a complaint is filed looks like you're papering the file, she said.

2. Vague documentation.

Managers tend to use ambiguous language in documentation, West said, but to a third party, that can reflect poorly on their ability to coach.

A jury needs to see that the employee knew what his or her manager expected. "Fails to produce deliverables" should be replaced with something like "failed to turn in annual report by March 21, as instructed by email."

Documentation also should make clear how the accompanying conversation went. Quotes are fabulous, West said. For example, if a manager asks an employee why he or she is often late and the employee says "I don't know," the manager should write that down.

3. Code words and phrases.

Avoid trendy words and phrases, like "insubordinate," West said; employees shouldn't be required to figure out what these mean, and they significantly decrease a manager's credibility.

Instead, documentation should state, for example, that an employee left work early without a manager's permission, and that such an action violates a workplace policy.

HR also needs to get managers to cut inflammatory statements like "you should know better," West said. A manager's goal is to coach and get people where they're supposed to be, and such statements don't demonstrate an ability to do so.

4. Absolute expressions.

"Absolute expressions will absolutely get you in trouble," West said. Words like "always" and "never" should be avoided, she said, because it's unlikely an employee is always late.

Managers who exaggerate undermine their credibility, she said; if they're exaggerating about attendance, a jury will assume they're also exaggerating the severity of the problem.

Specific dates are ideal but if they're not available, teach managers to use words like "periodically" and "frequently," she said.

5. Unclear expectations.

Managers need to clearly explain in assignments, policies and coaching what needs to happen, continue or change, West said. An instruction like "show up on time" isn't as clear as it could be, she said; instead, use "arrive at 8 a.m."

"Be more efficient" is even worse. If jury members see a phrase like that memorializing a performance conversation, they're going to think the manager wasn't clear about expectations in the first place – or that they were setting the employee up to fail.

Action plans to correct behavior should be clear, too, West said. Managers should explain exactly what employees must do, and the consequences of failing to do so.

6. No questions asked.

Without documentation that shows a manager asked questions, it will appear that he or she was only looking at things from one perspective, West said. Managers need to ask what's going on and what the employee needs from them — and document both those questions and the employee's response. It demonstrates two-way communication, and managers may be surprised what they learn along the way, she said.

To a jury, this demonstrates that a manager was interested in what the employee had to say and took ownership of his or her coaching responsibilities.

7. Discrimination red flags.

Phrases like "bad attitude" and "not fitting in" are a recipe for disaster, West said, because no one thinks they have a bad attitude; instead, such phrases make employees think their manager is actually unhappy about their age, race or other protected factor.

To prevent this, coach managers to talk about specific conduct, she said. For example, "You frequently roll your eyes when Bob offers a suggestion in a team meeting."

Terminations that cite only an employee's "at will" status will create similar assumptions, "because nobody fires people for no reason," West said. Talk about what workplace policy the worker violated; "it's the right thing to do."

8. Snarky tone.

Documentation shouldn't say "you are hereby required to do the following." "Nobody writes 'hereby,'" West said. Instead, coach managers to stay away from legalese and write in plan language; she said she suggests something like "following up on conversation today, here are the two things I need from you."

Avoid sarcasm, too, West said. Juries should never see a manager saying "do you even want to work here?" in writing. Managers need to think about how that will look; "the jury is always going to … think that you have some kind of bias there."

9. Legal conclusions.

Instruct managers not to draw legal conclusions, West advised. For examples, phrases like "this is the worst case of harassment I have ever seen," or "Bob's conduct violates the law" are problematic because a manager's role is to determine whether there's been a workplace policy violation — and that's it.

Employer harassment policies, for example, likely will be more strict than applicable laws, she said. Policies shouldn't be discussing "severe or pervasive" harassment because employers generally will find a policy violation after one joke or one touch.

10. Email evidence.

"Your email will last forever," West said; "every word that gets written is evidence," including those on Slack and other instant messaging platforms.

People think Slack doesn't count, she said, but managers, in particular, need to think about how those exchanges will look to a jury. Ask managers to proofread things, consider their tone and maybe have someone else read it before sending. And let them know that missteps here could result in their termination. The stakes are too high: the U.S. Equal Employment Opportunity Commission and everybody else wants to see those messages, West said. And you can't delete them; "They're around forever."