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I Have Three Words For You: Document, Document, Document
By: Michael Kun, Esq.

This article is for informational purposes only. It is not for the purpose of providing legal advice

and does not create an attorney/client privilege. Readers should consult legal counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of

Jackson Lewis LLP.

The old realtor’s maxim is that the three most important words in real estate are “location,” “location,” “location.”

There should be a similar maxim for managers and human resources professionals. And it

shouldn’t be too hard for you to guess what the three most important words should be since they also appear in the title of this article: “document,” “document,” “document.”

How important is documentation? So important that one could argue that “document” is

also the fourth and fifth most important words. You have to admit -- that’s pretty darn

important.

Documenting creates a record of events. Giving an employee a document setting forth his

or her successes can be great for morale. Giving an employee a document setting forth areas he or she needs to address can be a motivator. Maintaining documents can avoid disputes about what did -- or didn’t -- occur. Documentation can help avoid or defend litigation. As important as documentation is, it is something many managers and human resources personnel fail to do consistently. There are several reasons why we do not document events, even when we know that we should. Not a single reason is valid. The most common excuses are:

1. “I Don’t Need To Document This Event Because I Will Remember What

Happened.”

Don’t bet on it. Oh, sure, you might remember something for a few days, but will you

remember it in a few years? What if there’s a lawsuit and you have to testify about an event three or four years after the fact? Will you really remember, or will you be speculating about what probably occurred? Wouldn’t you rather be able to look at a document to refresh your memory? Wouldn’t you rather be able to say, “That’s right, I spoke with Jenny on April 18 about the need to have the schedules posted each Wednesday” instead of “I think I spoke with Jenny sometime in the spring about schedules, but I don’t remember what we said”? Of course you would.

2. “I’ll Get To It Later.”

No, you won’t. If you put off documenting a little while, you’re likely to put it off a long

while -- and perhaps never get to it. And if you don’t do it right away, just how accurate is it

going to be? From a legal standpoint, if you did not create a document at the same time as an

event occurred, or shortly afterward, it can be excluded from evidence. That means that not only

won’t a judge or jury be able to look at it, but neither will you.

3. “It Wasn’t Important Enough To Document.”

If it was important enough to meet with an employee about, it’s important enough to

document. I’m not suggesting that you document each and every conversation you have with

employees. You’d go through ten pens a day if you did that. But here are a few good rules of

thumb: If it involves performance issues, document it. If it involves discipline or termination,

document it. If it is something that could lead to discipline or termination if it’s not corrected,

document it. If it involves allegations or improper conduct, document it. If someone is upset,

document it. If someone is complaining, document it. And, my favorite: if you felt you had to

close the door for the discussion, you’d better believe it’s something you should be documenting.

4. “I Don’t Want To Hurt Someone’s Feelings By Putting Something In

Writing.”

Boy, are you in the wrong field! A good manager or human resources professional finds

ways to address issues with employees in a manner that minimizes emotions and emphasizes

business needs and expectations. Don’t fail to document an employee’s shortcomings because

you think he’ll ge t upset. Explain to him that you have to document the problems and that you

hope he’ll correct the problem.

5. “I Don’t Want A Record Of What Was Said.”

Unless you’re working for the mafia, this isn’t a valid excuse. People can and will talk

about what was said during a meeting. Wouldn’t you rather have an accurate reflection of what

was said than no record at all, which allows for the possibility that someone might dispute or

exaggerate what was said? If it’s something you don’t want a record of, you probably shouldn’t

be discussing it in the first place.

THE TEST

Now, without any further ado, here is the easiest test you will ever take.

Questions

1. What should you do if an employee complains about improper sexual conduct?