By: Amy Epstein Gluck

Yes, I do love that scene in Jerry Maguire where Tom Cruise is kind of losing his mind but Cuba Gooding, Jr. helps him see the humor in their situation.

But in this case, it’s true. Imagine this very common scenario:

Sam supervisor walks into Hal HR’s office, and says “We need to terminate Edgar Employee. His performance is subpar, and his attitude stinks!”

Hal nods his head and says, “Cool. Have you documented these performance issues or talked to Eric about his ‘tude.”

Sam responds “Yes! Of course! I’ve had several conversations with him about it.”

Hal: “But have you documented these conversations by following them up with an email or a note to me or anyone else in our HR Department?”

Sam: “Well, no. But so what? He knows we’ve discussed his frequent ‘breaks’ and inability to multi-task.”

Hal: “Wait, isn’t he the one who complained about [age, religion, sex, take your pick] discrimination last week?”

Sam: “Yeah, so what?”

So what?!?

Folks, I am here to tell you that if an employee issue or problem is not documented, it’s like it did not happen. I kid you not. Whether we’re talking about poor performance, attendance, tardiness, KPIs, or following company policies, a talking-to is not enough. Supervisors and managers must document these conversations—and they should do so in real time.

Why?

An employer’s adequate documentation of the legitimate basis for an adverse action can squash, if not just defend against, a wrongful termination claim (as long as you didn’t discriminate, right?)

business-1868015_1920

Let’s examine the significance of adequate documentation in a real, live case.

Take the (relatively) recent case of Simpson v. Temple University, et al., where the U.S. District Court for the Eastern District of Pennsylvania granted summary judgment to the defendants on the plaintiff’s claims of interference and retaliation under the Family and Medical Leave Act (FMLA).

There, the plaintiff worked as the assistant director of maintenance and operations at Temple University for five years and had received periodic warnings about her behavior over the years from her supervisor. After one particular incident, the plaintiff’s supervisor investigated and decided to terminate the plaintiff’s employment. That same day, the supervisor emailed HR explaining that he was going to terminate the plaintiff and why. He told the plaintiff that he no longer had faith in her ability to be a supervisor.

Days later, this plaintiff was admitted to the ER and requested FMLA leave from the HR Department. Unaware that she had requested medical leave, the supervisor emailed termination paperwork to the plaintiff while she was out on leave. The plaintiff claimed retaliation for taking FMLA leave.

What Did The Court Say?

To state a claim for FMLA retaliation, the plaintiff had to show that the termination was causally related to her request for FMLA leave.

And, guess what? The District Court determined that the supervisor’s contemporaneously documented decision to terminate the plaintiff’s employment and his submission of the formal paperwork to implement her termination were made before she requested the leave and before the supervisor knew she requested leave.

Do you think the court could have come to this conclusion on summary judgment without the supervisor’s detailed email to HR about the termination, in particular, explaining the (legitimate, non-discriminatory) bases for termination?

Heck no!

Takeaways

In this case, documentation demonstrated that the adverse action—the termination—was not causally related to the employee’s later request for medical leave. Had the supervisor delayed sending this email, or not sent it at all, the plaintiff might very well have been able to show causation.

Supervisors, managers, I cannot stress this enough—you must document performance concerns, behavior, attitude, work product, policy violations, investigations, and any similar type of matter. An email summarizing that verbal conversation you had with the employee, to HR or the employee, is usually just fine.

(But don’t text. Texting is for friends, not matters related to employment.)