©2019 Jackson Lewis P.C.

Angela Quiles Nevarez

Jackson Lewis P.C. | Philadelphia

angela.nevarez@jacksonlewis.com

267.319.7817

Tara K. Burke

Jackson Lewis P.C. | Cincinnati

tara.burke@jacksonlewis.com

513.322.5027

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Represents management exclusively in every aspect of employment, benefits, labor, and immigration law and related litigation.

850 attorneys in 57 locations nationwide.

Current caseload of over 6,500 litigations, approximately 650 class actions.

Founding member of L&E Global.

A leader in educating employers about the laws of equal opportunity, Jackson Lewis understands the importance of having a workforce that reflects the various communities it serves.

About the Firm

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Jackson Lewis is pleased to offer this webinar in conjunction with Exponentum.

Exponentum’s member organizations provide legal and educational services to nonprofits serving low-income and disadvantaged neighborhoods across the United States, including major metropolitan and surrounding areas in California, Connecticut, Florida, Georgia, Illinois, Massachusetts, Michigan, New Jersey, New York, Ohio, Pennsylvania, Texas, Washington, D.C., and Washington State.

Visit www.lawyersalliance.org/National_Network.php to learn more.

Exponentum

Bay Area Legal Services (Tampa)

D.C. Bar Pro Bono Center (Washington D.C)

Lawyers Alliance for New York (New York City)

Lawyers Clearinghouse (Boston)

Michigan Community Resources (Detroit)

Philadelphia VIP (Philadelphia)

Pro Bono Partnership (Hartford, CT; Parsippany, NJ; White Plains, NY)

Pro Bono Partnership of Atlanta (Atlanta)

Pro Bono Partnership of Ohio

(Cincinnati and Dayton)

Public Counsel (Los Angeles)

San Diego Volunteer Lawyer

Program (San Diego)

Texas C-Bar (Austin)

The Justice & Diversity Center

(San Francisco)

The Law Project (Chicago)

Wayfind (Seattle)

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Exponentum Members

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Jackson Lewis P.C. has prepared the materials contained

in this presentation for the participants’ reference and

general information in connection with education seminars

presented by the firm and its attorneys. Attendees should

consult with counsel before taking any actions that could

affect their legal rights and should not consider these

materials or discussions about these materials to be legal

or other advice regarding any specific matter.

Lawyer’s Disclaimer

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What goes in a personnel file?

• I-9 File

• Medical File

• Personnel File

What stays out of a personnel file?

Other documents you may want to consider segregating from the personnel file

Who can see the file?

What to do with the file when the employee leaves?

How long do you need to keep the file?

Personnel Files 101

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Smith and Smith PLLCAttorneys at Law111 Fifth Street, Suite, 123Cincinnati, OH 45202

Dear [YOUR NAME HERE]:

Sophia Black, your former Employee, has retained this firm to prosecute her claims of genderdiscrimination, age discrimination, and retaliation arising from, and relating to, her employment with theFoundation. Specifically, Ms. Black has related facts which indicate that the Foundation, through the actionand inaction of its various agents, including its managers, has violated numerous laws against discriminationand retaliation when you terminated her employment in February 2019.

Ms. Black dedicated her life to your organization. She was disciplined several times without cause andultimately fired for discriminatory reasons even though you told her it was for performance. We know thatwas false.

My client has authorized us to engage in settlement negotiations. Unless we hear from you, we will becommencing formal proceedings relating to this matter on or about June 1 seeking back pay, emotionaldistress damages, and punitive damages. In the meantime, please send me all documents related to Ms.Black.

Very truly yours, Anna Smith, Esq.

What Would You Do?

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DOCUMENTATION DECREASES LITIGATION

In addition to the value with a jury, appropriate

documentation can defer potential litigation:

Decreases feelings of angst by employee.

Shows potential attorneys that you have given the

necessary thought and attention to sound business

practices.

The Importance of Good Documentation

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Fair notice to employee

Memory aid for manager

Detecting performance or conduct patterns

Jury research: if the supervisor did not bother putting it

in writing, it must not have been important!

The Importance of Good Documentation

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Is your state an “at-will employment” state? If so, what does

that mean?

It means: you can terminate someone for any reason you

want, so long as the reason is not specifically illegal (like

discrimination).

It does not mean employers can do whatever they please.

The lesson:

• Good, provable, concrete reason (legitimate, nondiscriminatory

business reasons)

• Documentation

• Comparables

Wait! What About At-Will Employment?

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Every employer faces discharge and discipline decisions

To avoid liability, you need to be sure decisions to

terminate and discipline are:

• for job-related, nondiscriminatory reasons

• do not violate contractual commitments

• comply with company policies

• are consistent

The Importance Of Good Documentation

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Failure To Act

Inconsistency

Failure To Document

Errors to Avoid

Timely – created at time of

incident

Specific, plain language

Objective – records key facts

Limited to performance and

behavior

Accurate and verifiable

Complete record for basis of

decision

Includes corrective steps, not

just infractions

Avoids extreme or conclusory

statements – no “always”

“never”

Free of hearsay, innuendo,

supposition, emotion

Free of references to protected

characteristics

Dated, identifies author and

witnesses, if any

Logically communicates

information to employee

©2018 Jackson Lewis P.C.13

What Is Good Documentation?

* Demonstrates that the employee was treated fairly.

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Hiring Documentation

Documentation of work performance

• Performance evaluations

• Documentation of verbal counseling

• Discipline

Documentation justifying pay increases, promotions, etc.

• Personnel Action Request forms

• Attach separate document explaining why the decision was made (equity increase, promotion, transfer, demotion, etc.)

Termination Documentation

What Records Should be Maintained and How

Should These Records be Kept?

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Do not make notations on applications and resumes or

create documents that may prove problematic later

Do not use symbols as memory aids to keep track of

applicants

Do make a record of why the selected person was

chosen and why other candidates were not selected

Do forward your interview notes to HR for safekeeping

Hiring Documentation – Dos and Don’ts

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Do evaluations on time

Review previous evaluations/discipline

Tailor the evaluation to the job description

Evaluate performance, not the person

Use objective facts, not subjective conclusions

• Cite specific examples to support conclusions

• Positives and negatives

• Provides expectations, objectives, and consequences

Performance Evaluations – “Musts”

Example

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© 2018 Jackson Lewis P.C.

Example

Joe is not a good team player

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Example

© 2018 Jackson Lewis P.C.

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Joe did not participate in team meetings on January 5, March 3 or August 4.

Joe needs to attend and participate in team meetings.

www.jacksonlewis.com20

Rating employees higher than warranted to get them salary increases

Avoiding direct and honest statements of the REAL reasons for poor performance – the Mr. Nice Guy Syndrome

Withholding feedback until something “big” happens and/or including performance problems in the evaluation never previously addressed

Sudden deterioration in performance after many years of acceptance

Contradicting written review in meeting with employee

Performance Evaluations – Mistakes to Avoid

Quotes from lawsuits routinely filed in court:

• “Prior to plaintiff being injured on the job and filing a claim for

workers’ compensation, plaintiff’s evaluations had been good

and she had not been reprimanded in 3 years of employment.”

• “Throughout his employment, Plaintiff was a loyal and dedicated

employee who consistently received positive performance

reviews.”

Performance Evaluations – Inflated Evaluations

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To clearly identify performance issues

To define Company expectations

To provide coaching and direction to help the employee

succeed

To minimize miscommunication

To avoid memory discrepancies

To avoid or defend wrongful termination lawsuits – the

“silent witness”

Documenting for Discipline:

The Goal Of Corrective Action

©2018 Jackson Lewis P.C.23

Tom fails to pay attention to his work

WITH

Tom gave the wrong patient chart to the doctor on

March 2, 2019

Sally is always late

WITH

Sally was late on May 1, May 3, May 8, May 17, May 2

Compare:

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What to include?

• Name, date, specific offense or rule violation; specific statement

of expected performance, and what will happen if this

expectation is not met.

• The facts. If in dispute, how/why you reached your conclusion.

• Include reference to prior disciplinary action and employee’s

failure to improve.

• Include explanation given by employee if supervisor feels it is

appropriate.

Proper Documentation For Corrective Action

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How to word it?

• Accuracy – do not sugar coat.

• Objectivity – state facts, not opinions, and no legal conclusions.

- “Bob engaged in illegal sexual harassment. . .”

- “Claire was obviously lying . . .”

- “Joe asked for a special chair. I provided him with one since he has

a disability.”

• Consistency – same documentation for all similar offenses.

Proper Documentation For Corrective Action

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Wrong: Show up on time.

Right: Our attendance policy states that the workday

begins at 8:00 am. You received the policy on 4/1/17.

Wrong: Turn in your reports on time.

Right: Per the attached email, I requested that you

provide me the report by 4:00 pm on Monday.

Proper Documentation For Corrective Action

Example

To: Sally Smith

From: Manager Tom Jones

Date: February 12, 2019

As we discussed today, your tone when speaking with clients needs

immediate improvement. Specifically, today I heard you raise your

voice at a client over the telephone. This is the second time in the past

month I witnessed such an incident. After the first time, I met with you

and reminded you of the importance of treating clients with respect, and

we discussed that it is inappropriate to raise your voice at a client.

Further instances of this nature may lead to disciplinary action, up to

and including termination. Immediate and sustained improvement is

required.

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Corrective Action

Name of Employee: Date:

Department: Date(s) of Incident:

Position: Date of Hire:

INCIDENT: This Corrective Action is being issued due to the following performance issue(s) and/or unacceptable conduct.[ Include reference to any Company policies as appropriate. List

date and type of previous corrective action(s). Also list any previous verbal coaching on same or related issue.]

We expect immediate and sustained improvement. Any future issues will result in additional discipline up to and including termination of employment.

CORRECTIVE ACTION TYPE: Identify corrective action (e.g., documented verbal, written warning, final warning, termination, other).

CORRECTIVE ACTION REQUIRED: Going forward the following action(s)/conduct is required.

EXPECTATION: You are expected to make sustained and continuous improvements and to satisfactorily maintain all other aspects of your performance. Failure to do so may result

in further corrective action, up to and including termination of employment. You are employed on an at-will basis. Accordingly, either you or the Company may terminate the

employment relationship at any time, with or without cause or advance notice. Nothing contained in this document is a guarantee of continued employment for any specific, fixed

period of time.

By signing below, you acknowledge that _____________ and _____________ met with you on {date} and discussed this Corrective Action. You further acknowledge that you have

reviewed and understand the statements contained in this document and you have had an opportunity to ask questions.

Employee’s Signature: Date:

Supervisor’s Signature: Date:

Human Resources/Manager Signature: _______________________Date: ______________

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Discuss the action(s) being taken, correlating to

company policies/procedures

• “… you will receive a three-day, unpaid disciplinary suspension

beginning on June 1, 2019 for violation of the organization’s anti-

harassment policy”

Clearly explain retaliation is prohibited and is grounds for

further disciplinary action

Letter goes into the accused’s personnel file and a copy

in the confidential investigation file

Proper Documentation for Corrective Action

Document Verbal Discussions

11/1/18 Spoke to Phyllis about quality errors

11/5/18 Reminded Eric to be on time

11/7/18 Asked Beth to help her co-workers

11/9/18 Reminded Beth to watch her sarcasm and tone with co-workers

© 2018 Jackson Lewis P.C.

Even with a multitude of high-tech options

to communicate, over 90% of employees

still prefer to get their information face-to-

face with their direct supervisor.

Source: Society for Human Resource Management

Communication Is Key

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Involve higher chain of command

Ensure investigation establishes decision is based upon

facts - not perception, hearsay or speculation

Establish clear, non-discriminatory basis for termination

Document reason(s) for termination

Review documentation for completeness

Review personnel file for inconsistencies

Proper Documentation for Corrective Action -

Termination

Emails

Dance like no one is watching;

email like it may one day be read

aloud in a deposition.

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Thank YouWith more than 900 attorneys

practicing in major locations

throughout the U.S. and Puerto

Rico, Jackson Lewis provides

the resources to address every

aspect of the

employer/employee

relationship.

jacksonlewis.com