Put it in writing.
Document, document, document.
We hear these things in various legal contexts because, in fact, a number of legal problems result from not sufficiently memorializing things. For example, too often business transactions are conducted on a handshake rather than writing down certain key points. When a problem arises or trust is lost, there is a dispute because the parties did not write enough down.
In the employment setting, too often employers have no record of issues with a particular employee that have been concerning them for years. When the employer finally wishes to terminate the employee, the file does not sufficiently memorialize the concerns the employer had been having and the employer may be vulnerable to discrimination and other claims.
So, the need for more documentation is very real. But, there are also plenty of things you should not write down because they may be harmful to you in future legal proceedings. And of course in the electronic age, we write down much more and, just as important, sometimes do so less thoughtfully than we should.
Here are three examples of things you should not write down:
1. She’s just not a good fit here.
Any of us in business know that some people aren’t a good fit in our business environment, and that is a legitimate reason not to continue to employ them. Trust me, however, that “fit” does not play well when defending a discrimination suit if the person who does not fit is a member of a legally protected class of which most people in the organization are not. What exactly does that fit mean? Why is the person not a good fit? If taking a job action against a person who does not “fit,” be prepared to articulate more specific reasons why the person should not continue to be employed.
2. I am tired of not being able to count on him to do his part. When is he going to come to work?
It is understandably frustrating when an employee does not come to work as scheduled – it likely makes it harder for the rest of the team to meet their performance objectives. However, the absent employee may be sick, and if the employee is sick, he may have rights under the Family and Medical Leave and disability discrimination laws, among other things. Frankly, those laws don’t “care” if the employee’s absence is frustrating, and memorializing your frustration may make it more difficult to defend claims from that employee in the future.
3. Do you think we might be liable?
It does not take a law degree to realize how a jury is going to see this statement – look, they knew they did something wrong. If you want to talk about liability, do so only in a privileged communication with your lawyer.
How do you decide what to put in writing and what not? I think the best way to look at what you put in writing is that it is potential evidence in a legal proceeding. (This is hard to understand for some newer businesses that have managed to avoid legal proceedings. Hopefully they are seeking the guidance of more seasoned businesspeople who have seen the value of taking steps to avoid legal proceedings.)
Viewed in that lens, you want to preserve good evidence, but not bad evidence. In other words, you should document things that show you and your business are complying with their legal and other obligations. “Document” need not mean a formal memo; a simple note or e-mail is usually as good as a more formal memo as evidence.
When there is a problem, it may very well be in your interest to create some documentation, but not until you have carefully formulated a strategy for doing so. A lawyer you can trust can help your business do so, and distinguish when to document and not document. There may be no skill that is more helpful in minimizing legal issues that distract from the mission of your business.
Barnes & Thornburg LLP is a large, full-service law firm that seeks to take a more entrepreneurial and cost-effective approach both to client service and its own business.
