Documentation: An Employer’s Best Friend … Or Worst Enemy? This case is an example of the latter.

How many times has an employer facing an employment claim been told that problems with its documentation policies, performance reports, warnings, etc. may increase its risk of liability? How many employers have “gotten religion” after settling what they believed to be a frivolous case and embraced documentation as the silver bullet to protect against similar future claims?

While the absence of contemporaneous documentation typically hurts the employer’s defense of a wrongful termination, discrimination or other employment claim, a recent appellate decision illustrates the double edge of the documentation sword. In Cheal v. El Camino Hospital, the contemporaneous documentation so meticulously maintained by the employer was relied upon by the Court in reversing what had been summary judgment in the employer’s favor.

In Cheal, a hospital terminated a long term employee for performance problems. She was 61 and sued for age discrimination. The hospital won summary judgment in part through the trial court’s determination that the plaintiff had not demonstrated that her performance had been satisfactory. The court of appeal reversed, using the hospital’s own documents as the basis.
The hospital used a preprinted evaluation form for rating performance on a variety of tasks. Each listed task included a notation of acceptable error rates for that task. The court called the forms “something of a smoking gun” since the evidence of performance deficiencies on which the hospital relied (“‘several mistakes on menus’ over a period of four or five months”) was a much lower rate than that stated on the evaluation forms. The court considered that form alone enough to belie the trial court’s finding of inadequate performance.

The evidence of “pervasiveness of similar errors” by plaintiff’s much younger co-workers (who were not terminated) didn’t help the hospital’s cause.

The hospital also made a failed just-before-termination attempt to document performance issues through an emailed list from plaintiff’s supervisor of 16 “coachings.” These were easily contested by plaintiff since they contained little detail. She explained away the listed events by providing context for each that nullified the claimed deficiency.

Here are a few takeaways from this opinion for employers and their attorneys.

First, make sure all policies, procedures and forms used are consistent with actual practice (as well as legal requirements).

Second, make a careful review of your documentation of the employee’s conduct or performance before terminating or disciplining that employee to make sure it supports rather than undermines the contemplated action.

Third, ask yourself whether an outsider, a judge or a jury, would agree with your assessment. Think about other employees, past as well as present, who held a similar position. Ask whether you have been consistent in your application of your standards with other employees.

Proper documentation can be a very powerful shield deterring and defeating litigation. However, an employer’s documentation can also be a sword wielded by a plaintiff that creates a substantial liability. The employer with foresight will get their documentary house in order before a problem arises.

For a more detailed discussion, read our full article here.

– James Parton III and Francis D. Conway, Parton | Sell | Rhoades, PC

If you would like to learn more or discuss this topic with James Parton III or Francis D. Conway, please email them at jsell@partonsell.com and fconway@partonsell.com, respectively.

How many times has an employer facing an employment claim been told that problems with its documentation policies, performance reports, warnings, etc. may increase its risk of liability? How many employers have “gotten religion” after settling what they believed to be a frivolous case and embraced documentation as the silver bullet to protect against similar […]