Doctors document their patients’ temperature and blood pressure. Police officers write up reports on traffic accidents. But, on a day-to-day basis, federal supervisors often do not document poor performance as they should.
The No. 1 question employee relations specialists ask supervisors who want to take an adverse action is: Where is your documentation? If the documentation is lacking, chances are the adverse action will not take place.
Why is documentation frequently not done? Some cite the press of other business; some say documentation takes too much time or doesn’t feel right, as if you are keeping tabs on someone.
Documentation is necessary in dealing with poor performers. It should also be done for good performers so that good decisions can be made about performance ratings and awards.
With the advent of email and secure computer systems, there is no longer an excuse not to document poor performance. It is easy for a supervisor to set up a password-protected file and send emails to himself documenting performance — good and bad.
The documentation can be sorted into files and used later for performance appraisals, award justifications or performance improvement plans. Email documentation has the advantage of having an electronic date and time stamp, thus enhancing the credibility of the well-meaning supervisor.
Documentation is evidence. It is part of the agency’s burden of proof in an arbitration or at the Merit Systems Protection Board. Even with the reduced burden of proof in performance cases, documentation shows that the supervisor engaged the employee and communicated expectations. MSPB precedent firmly establishes the notion that a supervisor who communicates expectations and provides regular feedback to a struggling employee will provide content and context to a performance standard that might otherwise be found to be impermissibly vague.
The most important rule about documentation is to do it. Second is to do it close to the event.
There is no right or wrong method of documentation, but there are a couple of “don’ts” when documenting poor performance.
The first method is to avoid emotion, foul language or name calling. This detracts from the supervisor’s professionalism and may cause an arbitrator or MSPB judge to think that the supervisor has a bias or agenda against the subordinate.
The second practice to avoid is references to protected activity such as an equal employment opportunity complaint, union activity or whistle-blower disclosures. The focus should be solely on performance. Mentioning protected activity could infer that the supervisor’s motivation in assessing poor performance is reprisal for the protected activity.
Even if the mention of protected activity is not sufficiently strong to establish discrimination or other illegal retaliation, the documentation will be evidence presented by the employee to show the supervisor’s ill will. Such documentation, at best, creates a side show.
Remember: All documentation, except communication that is subject to attorney-client privilege, can be made public during legal proceedings. A wise supervisor will prepare documentation from the perspective that someone else will read it.
In preparing documentation, a supervisor need not write a book or even a formal memo. The date, time and basic facts are necessary. What makes it better is to describe why the performance is poor, why it fails to meet a standard and how these important messages were communicated to the employee.
While it is most important that documentation be prepared and be retrievable by the supervisor when needed as evidence, it is also important that the supervisor be able to show that expectations of good performance were communicated to the employee.
In sum, documentation of poor performance should show that the poor performance occurred, that the employee knew the performance was poor and also knew what was expected.
Bill Bransford is managing partner of Shaw, Bransford & Roth in Washington. He serves as general counsel to the Senior Executives Association, Federal Managers Association and other professional associations. He co-hosts the “FEDtalk” program on Federal News Radio on 1500AM in the Washington, D.C., area. Email your legal questions to lawyer@federaltimes. com and view his blog at blogs.federaltimes.com/federal-law.
