Documenting Performance Before You Ever Need To
Why this matters
Almost every employment claim a shop faces turns on a question that sounds like it should be about the decision and is actually about the paper. Not "was he a bad tech" but "can you show it, in something written before you decided." A shop that lets a genuinely bad employee go for a genuinely good reason and cannot show it loses. A shop that wrote down an ordinary performance problem every month for six months wins, and wins early and cheaply, usually before anybody files anything.
The record is made before anyone needs it, which is exactly why it is almost never there. This card owns the standard for this library: what one entry has to contain to be worth anything a year later, and what habit produces those entries in a shop with nobody whose job it is to write them. A sibling card covers what the assembled file has to prove once a firing is challenged; this one is a level down, at the entry and the habit. See related: Documenting Performance So a Termination Holds Up.
Start from the entry that proves nothing
Here is a real shape, and most shops have a folder of them:
3/14 - Attitude problem. Discussed with employee.
Read it as a stranger a year later. What did he do? Unknown. When? The fourteenth of some March. What standard did it fall short of? None is named. What was said to him? "Discussed." What did he say? Not recorded. What was supposed to happen next? Nothing stated. Who wrote it, and were they there? Unknown.
The entry proves that on a day in March somebody in the shop had a feeling. It is not evidence of the behaviour, because it does not describe any. It is not evidence of notice, because it does not show what he was told. It is not even evidence that a conversation happened, because "discussed" is the writer's word for an event nobody else witnessed.
Why a folder of those is worse than an empty one
This is the part that surprises owners, and it is the reason to fix the entry rather than to write more of them.
A shop with no documentation has a gap. The owner testifies to what happened, the employee testifies to something else, and the case is a credibility contest that can go either way.
A shop with twenty entries like the one above has handed over an exhibit. Twenty vague entries across one employee's file, and none in anybody else's, is not a record of poor performance. It is a demonstrated practice of writing down subjective impressions about one person, which is the shape of an argument that the performance language was a wrapper around some other reason. The opposing question is easy and there is no good answer to it: you wrote "attitude" eleven times about him and zero times about anyone else, so what exactly was the attitude, and how did the others avoid having one.
Vagueness is not neutral. Under a pretext argument it is affirmative material for the other side. See related: At-Will Employment and the Exceptions That Actually Bite.
The five things an entry has to carry
Derive them from what a stranger would need rather than from a template, and you get the same five every time.
- The specific behaviour and the date it happened. Observable, checkable, in the words you would use to describe it to somebody who was not there. Tie it to a job number, a ticket, a customer, a time stamp, anything that exists independently of your memory.
- The standard it fell short of, and where that standard was previously communicated. This is the element that is missing most often and it is the one that carries notice. Name the document and the date: the install checklist he signs each job, the toolbox talk on a stated date with an attendance sheet, the page in the handbook.
- What was said to him, in the words used. Not "counselled" or "addressed." The actual instruction.
- What he said back, including disagreement. Write it down even when it is wrong, especially when it is wrong. An entry that records the employee's version is credible in a way a one-sided one is not, and his explanation is often the thing that tells you whether this is a discipline problem or a process problem.
- What happens next, by when, and what follows if it does not. A behaviour, a review date, and the next step. This is what makes it a management document rather than a complaint.
Contemporaneous means that day or the next
The first hard part. An entry written the day it happened is evidence. The same entry reconstructed on the morning you decided to fire is worth close to nothing, and it is worse than nothing if anything reveals when it was actually written, because once one entry looks backfilled every other entry in the folder is now suspect.
Practically, that means the entry is written by the person who saw the thing, on the day, even when it is three lines. If your foreman saw it, the foreman writes it. An owner writing up an incident he heard about second hand four days later has produced hearsay with a date on it.
Where a record genuinely has to be written later, date it honestly as written later and say why. An openly late note is ordinary. A disguised one is the exhibit that costs you the case.
One collateral benefit worth naming: once a charge is filed, your ordinary housekeeping stops. Covered employers must preserve personnel records for one year from the action and, where a charge has been filed, until final disposition of the charge (29 CFR 1602.14). A shop that only writes things down when it is angry has nothing to preserve and no way to show it was not selective about what survived.
Consistency, and the exhibit you hand the other side
The second hard part, and the one nobody does. The good employee gets written up for the same thing the difficult one does.
Selective documentation is the single most useful exhibit a plaintiff's lawyer can find in a small shop, because it does the argument for them without anyone having to prove intent. If two people did the same thing and one file has an entry and the other does not, the difference between them was not the behaviour. That is the whole argument, and it is made out of your own paperwork.
This is genuinely uncomfortable, because writing up your best installer for something minor feels like punishing loyalty. Reframe what the entry is. It is not a punishment, it is a dated note that a standard applies to everyone, and it takes two minutes. If a rule is not worth writing down when your best person breaks it, it is not a rule and you should stop treating it as one for anybody else.
The worked artifact: one entry, rewritten
Same incident as the three-word version above, written to the standard.
Date of entry: 14 March. Written by: install foreman. Present: foreman, crew lead.
What happened: On 14 March the crew lead left the Harlow Road install at 15:40 with
the customer walkthrough not done. Item 11 on the install checklist for ticket 4412
("walkthrough completed, customer signature") is blank.
Standard and where it was communicated: The install SOP requires the walkthrough before
the crew leaves. Covered at the toolbox talk on 8 January (attendance sheet on file).
Item 11 is on the checklist he signs on every install.
What was said: Told him the walkthrough is not optional and that the unsigned walkthrough
on the previous install is what produced the callback on 11 March.
What he said: He said the customer told him to go because she had to collect a child,
and that he did not think a signature was needed if the customer waived it.
What happens next: From 15 March every install ticket comes back with item 11 signed,
or with a written note naming the customer who waived it. Review 29 March. If tickets
come back blank and unexplained after that date, it goes to a written warning.
Copy given to crew lead: yes, 14 March.
Two things to notice about what that entry did, neither of which is about a lawsuit.
It found a process problem. His answer is not an excuse, it is information: nobody had told the crews what to do when a customer genuinely waives the walkthrough, so the checklist had no legitimate way to be completed in that case. The fix in the next line ("signed, or a written note naming the customer") came out of what he said back, and it would not exist if the entry had recorded only the foreman's side.
It was applied to somebody else. On 19 March a second installer returned a blank item 11 and got the same entry on the same form. That single act is what makes the crew lead's entry evidence of a standard rather than evidence of a grudge.
At the review date, count rather than remember. Between 15 and 29 March the crew lead ran 9 install tickets: 8 came back with item 11 signed and 1 came back with a written waiver note naming the customer. 8 plus 1 is 9, so every ticket met the standard as it was written and the entry closes as corrected.
That outcome is the common one and it is the point. A file where every entry ends in a termination is itself a tell, because it shows the shop only documents people it has already decided about. A file that mostly shows problems raised and fixed is the file that makes the one termination in it credible.
The version a shop with no HR can actually run
Two decisions, then a standing two minutes.
Where it lives. One file per person, in whatever system already holds your people records, not in an email thread and not in the owner's phone. It has to survive a lost laptop and a foreman leaving. Medical information does not go in it; that is a separate file for separate reasons. See related: The Personnel File, What Goes In and Who Can See It.
Who writes it. Whoever was there. Give the foremen the five-field shape above and the authority to use it, or every entry ends up being written by the one person who was not present.
The two minutes. A fixed slot on a Friday, on the calendar, answering one question: is there anything I said to somebody this week that I would want dated. Most weeks the answer is nothing, which takes ten seconds. The weeks the answer is something are the ones that decide a case eighteen months later, and they never feel important at the time.
Three things that spoil an entry, worth knowing because they are easy to do: writing while angry, which puts sarcasm on a page that gets read aloud later; writing a conclusion rather than an observation, which is how "attitude" gets in; and not giving the employee a copy, which turns a notice into a secret note and removes the only thing that proves he was told.
Where a record stops being enough. Documentation is a management practice with no statute behind it, so nothing here is legal advice. Two situations are worth an employment lawyer's hour before you add the next entry rather than after: a file you are building on somebody who has recently complained, filed or requested an accommodation, and a file you have been asked to produce, whether by the employee, an agency or a lawyer. In both, take the whole file, the comparator's file, and the dates, and let somebody read it cold before you do anything else with it.
References
- U.S. Equal Employment Opportunity Commission, recordkeeping requirements, 29 CFR 1602.14 (one-year retention, and until final disposition where a charge is filed)
- Society for Human Resource Management, guidance on performance documentation and progressive discipline
- See related: Documenting Performance So a Termination Holds Up, Firing an Employee Without Handing Them a Claim, The Personnel File, What Goes In and Who Can See It