Thursday, June 15, 2017

Documentation, Recording, and Credibility

Credibility matters in many employer-employee interactions.  Hiring or promotion decisions may be made, in part, based on a candidate’s apparent trustworthiness. Internal investigations seek to determine who to believe. Jobs are saved and lost based on employers’ assessment of employees’ truthfulness and integrity. When internal issues become the subject of litigation, the credibility of an employer’s explanation for its decisions can make all the difference in defending a claim of discrimination or other violations of employment law.

To manage routine personnel actions and to respond to liability threats, employers need to know how to measure employees’ credibility, and how to establish their own.

In recent weeks, a great deal has been written and said about credibility in the context of former FBI Director James Comey’s testimony before the Senate Intelligence Committee.  Politics aside, a lot of attention has been paid to Comey’s documentation of certain conversations and to the possibility that those conversations may have been recorded.  Documentation and voice recordings can, of course, both make a great deal of difference in deciding who to believe. 

Some commentators used Comey’s situation to encourage employees to document their complaints of mistreatment in the workplace.  We know that plaintiffs’ employment lawyers often encourage their clients to document (and sometimes record) workplace interactions.  Employers should be mindful of that, but must also understand the critical importance of their own careful documentation of employee performance, employee behavior, and the reasons for personnel decisions. 

Documentation.  One of our favorite bloggers, Robin Shea, gets it right in this summary of what good documentation by an employer should look like.  Documentation need not be formally written, overly detailed, or conclusive, but should be contemporaneous and consistent.  It should be a habit for HR professionals, managers, and in-house counsel.  The importance of careful documentation was highlighted in a 2013 decision from the Fourth Circuit Court of Appeals, which found that an employer’s written record of a former employee’s “disruptive, rude, sarcastic behavior” supported its nondiscriminatory reason for the employee’s termination and defeated the employee’s claim of retaliation.  Late last year, in another Fourth Circuit case, an employer was able to prove abuse of FMLA leave with its documentation of an internal investigation and its record of the employee’s shifting explanations for being away from work.  

Recording.  The recording of workplace conversations, whether by an employer or an employee, generally raises more legal questions than those raised by documentation.  Although a recording can be more definitive and powerful than a written recollection of a conversation, not all recording is lawful, and there are constraints on the use of surreptitious recordings as evidence in a legal proceeding.  Eleven states ban recordings without the consent of all parties to the conversation.  Complex rules of evidence apply to the use of tape or electronic recording as evidence at trial. Some employers have policies prohibiting recording in the workplace, but the Second Circuit Court of Appeals recently upheld a National Labor Relations Board ruling saying that Whole Foods cannot prohibit employees from using recording devices. Employers should know the law related to recording of workplace conversations in the jurisdictions in which they operate, and should proceed with caution whenever recording is or may be part of an employment action or dispute. 

Posted by Judy Langevin