Delete cryptic notes lurking in your HR files

November 28, 2011
in Employment Law

Before you toss that handwritten note into the employee’s file today, stop for a second and read it. Years from now, will you remember what that chicken-scratch meant? Could any of those words be interpreted in more than one way?

Many employment lawsuits have turned on one or two words scrawled by a manager or HR pro after employee meetings and conversations.

Best practice: Write (and initial) any necessary clarifying words alongside your notes. Even better, draft a memo that summarizes and fleshes out your notes—and makes your ideas perfectly clear. Then trash the original notes.

The best paper trails are clear and self-explanatory. They can’t be interpreted several ways.

Recent case: Marc Penberg, an employee at Healthbridge Man­agement, has diabetes and had undergone heart surgery that re­­quired FMLA leave.

Penberg’s job involved converting patient referrals to the rehab facility into actual placements. He conducted medical screenings on all referrals but didn’t have a medical degree or training. (He’d later claim no one ever told him he needed that.)

About the time Healthbridge Management was contemplating a reduction in force, Penberg learned he needed more heart surgery. He asked for leave and soon found himself out of a job.

He sued, claiming age discrimination and FMLA violations.

During discovery, Penberg’s lawyers learned that the HR manager had kept notes taken during the RIF planning sessions. The scribbled thoughts on Penberg said, “January 20 back from leave, diabetic +50.”

Healthbridge officials also claimed it terminated Penberg be­­cause it wanted medical assessments done by licensed professionals. But it didn’t mention that need until litigation had already started.

These two factors, the court said, were enough evidence to send Pen­­berg’s claims to trial. (Penberg v. Healthbridge Man­­age­­ment, No. 08-CV-1534, ED NY, 2011)

Note: The company may be able to offer a different explanation for the notes at trial. For example, it could argue that the notes were just the HR manager’s assessment of litigation potential. That is, she might have been trying to decide whether this was a termination that could lead to a lawsuit.

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