Documentation of employee performance and conduct is a critical function for effective managers. Keeping an accurate record of an employee’s work history is necessary for performance management, employee career development, and compensation, discipline, and termination decisions. Two key questions that often arise are “What should be in that documentation?” and “Where should it be maintained?”
Managers should write down notes of conversations with employees about their performance and/or conduct. And these notes should be written on the same day as the conversation took place. Even if the conversation was not about formal discipline or part of the formal performance management process, some notes on the conversation are appropriate. Notes should always include the date, the manager’s name and title, the employee’s name and title, and what was said. Editorial comments and characterizations are not helpful; the notes should be factual.
If a manager meets with an employee to deliver a written form of discipline, the disciplinary document alone is not a sufficient record of the issues. Factual notes about the content of the conversation between the manager and employee when the document was delivered are critical. And the same is true of meetings to deliver performance reviews. The additional documentation of what was said, and by whom, can help a manager track performance issues and will help protect the company in the event of litigation at a later date.
Oftentimes, managers will have “casual” conversations with employees about a performance issue that is not considered disciplinary. Rather, the manager has noticed an issue that he or she wants to bring to the employee’s attention by just getting together for a few minutes in the manager’s office. Unfortunately, most managers will not make notes of these kinds of conversations because they are not considered “serious.” But later, if the performance issue continues and harsher action needs to be taken, there is an absence of a record showing that the manager has had ongoing communications with an employee on that very topic.
Alternatively, the “casual” conversation could be about something positive. Perhaps the employee performed particularly well on a project or received kudos from another employee or client. Those conversations should also be recorded.
Where should all such notes be maintained? Start by looking at the company’s policies. Most companies have a centralized system for keeping personnel files. And those files usually contain things like the application, résumé, signed offer letter or employment agreement, tax documents, annual performance reviews, formal disciplinary documents, important signed employee notices, etc. But it is not often that those files contain all the manager’s notes until after an employee leaves his or her employment.
Most managers keep notes of employee conversations in a manager’s desk file, under lock and key. So are manager’s desk files considered to be a part of the official personnel file? The answer is not so clear.
By statute in most states, employees have the right to review their personnel files upon reasonable notice. And in many states, employees have the right to receive copies of some, if not all, of the documents in the personnel file. While the company will usually respond to such requests by giving the employee access to the centralized personnel file, the best practice is to consider that your manager’s desk file could be deemed to be a part of the personnel file and therefore may be subject to review by the employee. And in the event of litigation, there is no question that the manager’s desk file will be subject to discovery. That means several things:
First, managers should always write notes with the understanding that they may be viewed by others such as the employee, the employee’s attorney, and perhaps even a jury. Therefore, care should be taken in creating the documents so as to represent the company well in others’ eyes. Clear, factual notes are the best way to ensure you are communicating well and preserving your credibility.
Second, engage in an ongoing process of reviewing your manager’s file and cleaning out unnecessary papers. For example, some managers will take the time to write and rewrite performance reviews or disciplinary documents and the desk file will contain all the drafts. There usually is not a need to keep the drafts and, in fact, prior drafts can come back to haunt you. Of course, you should never destroy documents after you are on notice of a claim. Also, some managers will take notes of conversations with a human resources representative when considering how to address particular issues with an employee. Once the action is taken, there may not be a need to keep those notes. Check with HR before destroying them, but the most important thing is that you are keeping on top of what should be maintained in your file.
Third, if you have any notes that reference medical issues or leave requests, or you have notes from the employee’s health care provider certifying that the employee was unable to work, these documents do not belong in your desk file. By law, medical issues are private and should not be maintained with other employment documentation. Send these items to human resources for appropriate filing under lock and key.
In summary, best practices for managers’ desk files are twofold: (1) take the time to write down notes of conversations with employees and do it the same day as the conversation; and (2) maintain your manager’s desk file in good order. Work with your human resources department and legal counsel to ensure that you understand your legal and corporate obligations.
Barrie Gross is former Vice President and Senior Corporate Counsel (Employment Law) for an international Fortune 1000 company and is a regular contributor to AllBusiness.com. She is the founder of Barrie Gross Consulting, a human resources training and consulting firm dedicated to assisting companies to manage and develop their human capital. Visit www.barriegrossconsulting.com to learn more about Barrie and the services BGC provides.
Note: The information here does not constitute legal advice and should not be relied upon as legal advice. If you have a legal issue or wish to obtain legal advice, you should consult an attorney in your area concerning your particular situation and facts. Nothing presented on this site or in this article establishes or should be construed as establishing an attorney-client or confidential relationship between you and Barrie Gross. This article is provided only as general information, which may or may not reflect the most current legal developments or be complete.