Think Ahead to the Unthinkable, Memorializing the Employment Decision

03/05/07

Things come to a head with a poorly performing employee—and you and her supervisor fire her. When she walks out the door, you both sigh with relief. After three months, you’ve forgotten all about her.

But 299 days after the discharge, she slaps you with a sex discrimination lawsuit, beating the filing period for bringing Title VII (discrimination) lawsuits by just one day.

You labor to reconstruct the events surrounding the dismissal and put the details down on paper, but it’s very hard to remember them all. Your mistake: You failed to “memorialize” the decision, in writing, when it happened.

“You probably did three thousand things since the event,” said Paul Salvatore, an attorney with Proskauer Rose in New York City www.proskauer.com that will cloud your memory. “If you later get hit with a lawsuit or EEOC charge,” he continued, “you remember by having a document that helps you remember.”

First Step: Interviews
The first step in memorializing a decision that may have legal repercussions is to interview all parties involved during and just after the event. If you catch an employee stealing, for example, you’ll want to get his or her side of the story, as well as stories from witnesses.

To interview properly, Salvatore told a group of HR professionals recently, ask nonconfrontational, open-ended questions designed to get the facts, clarify the problem, and come to a solution.

When you interview, have a second management-level employee in the room to take notes. Having another person present also helps prevent “your word against mine” disputes. “Tape recording the interview is an option,” said Salvatore, “but it may inhibit some people, and in some states it’s illegal unless everyone agrees in advance to creating a recording.”

And you’ll want to interview the people involved right away. As Salvatore pointed out, “You want to lock people down with a statement before they talk to friends and co-workers and decide to change their versions of what happened.”

If you think the situation may end in a lawsuit, Salvatore advised that you engage an attorney right away. “That way,” he said, “we’ll be in a better position to write our own exhibits for the jury.”

Write a Summary
After interviewing people involved, write a summary statement and ask each person to sign a copy to show they agree with its contents. If an employee signs a statement that says he violated a company policy, for instance, it will be awfully hard for him to refute it in court. (Note: Keep in mind that you can’t force an employee to sign such a statement.)

Then create a summary of the entire incident—the who, what, why, when, and where of the decision you made; the policies or laws violated; and why you took the action you did.

Document, Document, Document
Why go to so much trouble? Salvatore: “Juries absolutely love contemporaneous documents. They are not going to believe you, but juries believe documents.”

Salvatore told of a case in which the defendant, the employer, produced a ten-page summary of the decision that prompted a lawsuit. The employer had written it as the event and decision unfolded. “That document was very persuasive to the jury,” said Salvatore, “and the employer won the case. Documents,” he concluded, “make your life easier as a witness, and our lives easier as lawyers.”