WHAT IS THE NOTORIOUS PAPER TRAIL?

By Lisa Kaplan Gordon

We’ve all heard of the paper trail that bosses need to assemble when it’s time to part ways with a disappointing employee.

What should this infamous paper trail contain? And when do you start marking the trail that could be your best defense in terminating a worker?

“Having a paper trail of missteps can go a long way to protecting the employer from a discrimination or wrongful termination claim,” says David Weisenfeld, legal editor of . “Conversely, a lack of documentation can be a recipe for trouble.”

The paper trail should begin way before the working relationship goes south.

Here’s how documentation helps

When you put pen to paper – ok, words to a screen – you memorialize the thoughts and events surrounding an employee’s life with a company, from the initial job description to the final service letter.

The most useful documentation does the following.

• Memorializes a company’s mission, priorities, and expected behavior. Typically, this is the function of a company handbook.
• Outlines the scope of a particular job.
• Chronicles how an employee contributes to the company, such as awards won and goals met.
• Details how well an employee is functioning in a job.
• Supports decisions to advance or terminate an employee.
• Demonstrates that a company is complying with government regulations.

Below is a description of the most important documents a paper trail should include.

Employee handbook

This is the playbook that tells workers what the company expects of them, and what they can expect from the company.

Handbooks should include how raises, bonuses, and other pay decisions are made; how performance will be rated; how sick leave and vacation days are determined, and how disputes will be handled. Most important, handbooks must contain information that state, federal, and local regulations require, so make sure you understand those requirements before writing the handbook in clear, accessible language. Remember, handbooks are not just for employees. In a lawsuit, lawyers and government agencies will read your handbook, too.

Performance evaluations

Most supervisors and workers would rather stick needles in their eyes than write or read a performance evaluation. But the document, if written correctly, can praise, inspire, and guide, and it’s a vital part of the paper trail.

“Performance reviews are key,” says Weisenfeld, “and hopefully the employer has been documenting things all along if it is firing or plans to fire someone for performance-related reasons.”

Here’s what you should know about writing performance reviews.

• Although you may elect to hold a formal review annually, you should evaluate an employee’s work throughout the year. Praise and criticism should be specific and delivered in writing. An annual review should not be the first time a worker is hearing how well or poorly he is doing.
• Honesty is the best policy; so is tact. Address performance problems head-on, but in a diplomatic way that makes it easy for a worker to be receptive to your criticism and suggestions on how to improve performance.
• Meet face-to-face, or Skype-to-Skype, if the employee works remotely.
• Schedule ample time to discuss issues, taking into account that an employee isn’t going to read the review, thank you for your insightful comments, then get back to work. Workers will argue, dispute, and try to change your mind. Even if 98% of the review is positive, workers often latch onto the 2% of criticism, which takes time.
• Details are key. The more specific you are, the less room for argument. Don’t say: X never shows up on time. Do say: X was between 10 to 20 minutes late on these dates.

Disciplinary notices

Disciplinary notices can be the most important part of a paper trail that leads to termination. This documentation, in effect, provides a timeline of the events that resulted in termination. In a lawsuit, disciplinary notices state and support your reasons for letting someone go. For that reason, these notices should be timely, clear, and specific.

Here’s how to write a disciplinary notice.

1. Write the notice ASAP, taking care to date the document and prepare it soon after the infraction or problem arises. However, take some cool down time before preparing the notice, so you’re less likely to contaminate the document with vitriol.
2. Use facts, not opinions or impressions.
3. If witnesses exist, include their names.
4. Include prior disciplinary action and future expectations.

Service letters

Some states require employers to write an employment termination letter, AKA service letter, when an employee is laid off or fired. “This is especially true in states that outlaw the blacklisting of employees,” Weisenfeld says. These states often provide a service letter template.

Even if your state doesn’t require a service letter, it’s a good idea to write one anyway. Here’s what it should contain.

• Proof of termination as of X date, which can be presented to unemployment, insurance, and social services agencies. The letter should contain the reason for termination.
• Information on which/how benefits continue or end. This information is particularly important for employees who depend on the company for health insurance.
• Offboarding details, like which digital devices must be returned, when mobile phone lines and email access will be deactivated, and how employee ID cards should be surrendered.

If compiled correctly, a paper trail provides valuable information for both employers, workers, and – heavens forfend! – lawyers.

Clients of 501(c) Services may have access to our HR Services department. If you are a client of 501(c) Services, such as a member of 501(c) Agencies Trust, and have any questions regarding the information above and want sample policies or sample documents, please don’t hesitate to contact us at HRServices@501c.com.