Reader Question: Facing a potential legal issue, I was asked by another senior staff person not to send emails on the topic. The intent was to minimize any paper trail in the event things escalated to legal actions. Is such a request ethical? From an HR standpoint should firms document everything?
I ended up sending an email anyway, at the request of another manager to do so. As a consequence, I was berated by the staff person above and accused of covering-my-butt. Am I out of place here?
My Response to Reader:
You've identified one of the sticky HR questions that I should probably address on the site. Keep in mind that I am not an attorney so this is not legal advice, but just my practical opinion.
I usually advise my staff not to discuss any personnel issues via email. First of all, they are important enough to require face to face communication. Additionally, you don't want a paper path that normally represents only a small portion of the discussion that was held about any situation.
The email gains importance (sometimes unwarranted) if it is the only part of the discussion documented, which it often is. Example, you discuss a personnel issue on and off for weeks in person and exchange two emails. They will be more significant in court than your stated discussion over several weeks.
Often, written communication about staff issues is cover-your-butt. I can't assess in your case whether the manager requesting your written email was doing that or not. I tell my managers to maintain positive and not so positive documentation about each of their employees' progress, contribution, and performance on their PDPs in a private file for management use only, on an ongoing basis. So, if managers follow this dictum, we don't have documentation starting and stopping with a problem - or documentation only for a problem employee.
In HR, an employee file is maintained that holds all official documentation and correspondence such as disciplinary action forms. In my experience, I always have the employee sign what is in the official file, to acknowledge he or she has seen the document.
The HR staff may, of course, maintain files of information aside from the employee's personnel file, about discussions, incidents, etc. This information should be factual, dated, not express opinions, use examples, and so forth. The purpose of the notes is to refresh the staff person's memory of conversations, coaching, and so on.
If an employee issue escalates to potential legal action, involve an attorney, and state on every email that the information contained is subject to attorney / client privilege and copy the attorney whether he or she is the recipient, or not. I am sure your attorney will let you know if you are straying into best left unexpressed territory.
I've talked around your questions a bit because, lacking details, I cannot respond other than generally.
Wow, the eternal documentation and paper trail dilemma...your thoughts are welcome, too.
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