Small businesses typically do not have a full time, in-house human resources manager or other advisors on staff to handle employee complaints, nor are they equipped to deal with investigating allegations. However, regardless of the size of the organization, the standards of proof under the law are no less stringent when an employee files a claim against the company. In the eyes of the law, it is clear that if there is no documentation, it didn’t happen. Documenting verbal discussions can provide employers with potential defenses in the following situations: when protecting against an employee’s allegations in common “he said, she said” scenarios; refuting discriminatory and retaliatory practices; and demonstrating that counseling was provided to an employee with poor performance history prior to termination. Hence, business owners must understand that no matter how busy their managers and supervisors are, they must learn which verbal conversations to document and the best way to do so.
The purpose of documenting verbal discussions with employees is to justify that at the time in question your company’s communications and actions were based on a legitimate need and were taken out of business necessity. Determining which kinds of discussions should be documented is important for managers and supervisors to understand so that the business can later justify why certain decisions were made if an employee brings a claim. For example, any verbal warning or counseling session must be documented. However, not all types of communication, such as a conference call, voice mail, or in-person meeting needs to be documented. If that was the case, managers and supervisors would not have any time to complete their work. A critical conversation regarding an important project, an action item requiring employees to meet certain benchmarks on a project, a follow-up with an employee after the company took corrective actions after an employee made a complaint, or any review of an employee’s performance should be documented.
Managers and supervisors must also learn how to effectively document these verbal conversations. The business should provide a base form of what is expected of managers and supervisors to report when documenting verbal discussions with employees. Although it is not always practical to expect a manager or supervisor to fill out a form every time they need to document a discussion, sending an email with a receipt of notification to the employee involved in the conversation, confirming what was discussed, or sending the email to another manager confirming the conversation with the employee are effective ways to document the discussion. Regardless of how the conversation is documented, it is important to include the following information: the date and approximate time when the conversation occurred; exactly who was present and participated in the discussion; a clear summary of the key issues discussed; any responses given by the employee; and any solutions or action plans agreed upon by the employee and manager. Documentation of the conversation must also be timely to be effective.
Managers and supervisors should remember to prepare the documentation of the verbal discussion with the employee as if a third party (internal or external) were going to review it. This requires that all information regarding the conversation is reported objectively without any personal bias or subjective comments and to avoid using vague language and ambiguous phrases. Managers must include enough information in the report so that a third party could not question what happened, what steps were taken to put address the issues or the employee on notice, and what was required of the employee in the future.
It is also a good idea for employees to confirm that what is contained in the written documentation of the discussion is accurate and that the employee understands what is expected of them. This may include providing the employee with a copy of the report to review and sign. By requiring the employee to confirm the report is accurate, the employee is afforded the opportunity to address any misunderstanding in order to avoid later confusion or disagreement. Further, the employee cannot later dispute that what was included in the report of the conversation was not accurate because the employee signed the report stating it was accurate.