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Employee Performance Documentation: Do it!

Employers often wonder why performance documentation is so important, considering their employees are signed off on at-will employment disclaimers and their employee policy handbook contains an at-will employment policy. An at-will employer can terminate an employee for any reason, with or without a just cause, right?

There are numerous exceptions to the at-will rule, including various state and federal laws that prohibit certain forms of employment discrimination and retaliation. Effective documentation of employee job performance is necessary to show a legitimate, non-discriminatory/non-retaliatory reason for an adverse employment action. The absence of such documentation, coupled with the presence of documents that portray a qualified, good-performing employee, can expose an employer's "poor performance" explanation for termination as a pretext—a critical component of a successful employment discrimination claim.

Documentation should be thorough and contemporaneous. Periodic performance evaluations provide such an opportunity. Employers should establish written goals, objectives, and performance expectations at the beginning of the evaluation period; conduct at least a midpoint review to memorialize the employee's progress toward his or her goals and objectives; then, conduct a final review at the end of the evaluation period.  Ongoing or repeated deficiencies or misconduct should be memorialized and communicated to the employee when it occurs, and should also be included in the periodic performance evaluations.

"Effective" does not mean that the documentation must be voluminous. Commentary should be concise, consistent, and to the point. Surplus information may confuse the message and detract from the importance of the documentation. Effective documentation is valuable to the employer during difficult times, when tough retention, reorganization, and separation decisions must be made. It is a very important tool in managing the risk of employee termination lawsuits. It can also be a valuable direct line of communication to the employee, which can lead to improved productivity.

Employees are not powerless when it comes to creating effective documentation. Pats on the back or recognition memos are often few and far between. An employee can send a memo to his or her supervisor confirming successful completion of an assigned task(s). In fact, that memo can also describe the obstacles he or she overcame, the problems that were solved, the effective utilization of available resources, new skills and experience he or she acquired along the way, and any value-added items, such as cost savings realized, goodwill developed with the customer, or new business opportunities uncovered along the way.  

The employee who documents his or her good performance and accomplishments may save his/her job or, even better, pave the way to advancement. On the other hand, if the employee is terminated because of age, sex, race, or in retaliation for some protected activity, documentation of good performance can be the key to exposing a dummied-up reason as a pretext.