The Best Evidence Of Decision-making In The Workplace

1. The Best Evidence Of Decision-making In The Workplace How effectively creating, managing, and using employment records will lead to better decisions, more consistent outcomes, and reduce the risks associated with litigation. Presented by: James Erb, Asst. City Attorney and Public Records Officer for the City of Bellingham

2. Record – defined • What is a record? Merriam-Webster’s online dictionary defines record as follows: • 1:  the state or fact of being recorded • 2:  something that records: as • a:  something that recalls or relates past events • b:  an official document that records the acts of a public body or officer • c:  an authentic official copy of a document deposited with a legally designated officer • d:  the official copy of the papers used in a law case • 3 a (1):  a body of known or recorded facts about something or someone especially with reference to a particular sphere of activity that often forms a discernible pattern <a good academic record> <a liberal voting record> (2):  a collection of related items of information (as in a database) treated as a unit • b (1):  an attested top performance (2):  an unsurpassed statistic • 4:  something on which sound or visual images have been recorded; specifically:  a disc with a spiral groove carrying recorded sound for phonograph reproduction — for the record:  for public knowledge :  on the record — off the record:  not for publication <spoke off the record> <remarks that were off the record> — of record • 1:  being documented or attested <a partner of record in several firms> • 2:  being authoritative or sanctioned <a newspaper of record> — on record • 1: in the position of having publicly declared oneself <went on record as opposed to higher taxes> • 2:  being known, published, or documented <the judge's opinion is on record> — on the record:  for publication

3. Public records - defined • “Public record” includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. For the office of the secretary of the senate and the office of the chief clerk of the house of representatives, public records means legislative records as defined in RCW 40.14.100 and also means the following: All budget and financial records; personnel leave, travel, and payroll records; records of legislative sessions; reports submitted to the legislature; and any other record designated a public record by any official action of the senate or the house of representatives. RCW 42.56.010(3).

4. Writing - defined • "Writing" means handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated. RCW 42.56.010(4)

5. Storytelling with records • Employment typically begins with a record, i.e. a job application • Employment ends with a record, i.e. a letter of resignation or a termination letter • In the interim, records illuminate the course of an employee’s employment, i.e. personnel evaluations, corrective action, payroll actions notices, FMLA-certifications, ADA accommodation letters, etc.

6. Step 1 – creating accurate records • Supervisors and managers are responsible for creating good records. Question: which is the best practice for documenting an employee’s performance issues? • Prepare honest employee appraisals that are reviewed with the employee on an annual basis; • Send the employee an email; • Ignore the issue and hope it gets better; or • Ignore the issue and hope you reach retirement age before it becomes a “real” problem?

7. Honesty is the best policy. • The most important thing that managers and supervisors can do for their employees and for their employers is be honest. • Managers and supervisors fail when they fail to honestly evaluate an employee’s performance. • Example – John and Jane.

8. A Tale of Two Employees John Annual Evaluation 2013 Jane Annual Evaluation 2013 Job Knowledge - Effective Quality of Work - Effective Quantity of Work - Effective Communication - Effective Dependability - Effective Notes: Jane did a good job organizing the 2014 budget. • Job Knowledge - Effective • Quality of Work - Effective • Quantity of Work - Effective • Communication - Effective • Dependability - Effective • Notes: none

9. But being honest with problem employees is really hard. • Agreed. • But some things are harder -- like having to reintroduce a fired employee to the workforce because the employee’s attorney introduced 5 years worth of good (or better) performance appraisals which convinced the arbitrator that the employer acted too harshly when it terminated the employee for misconduct.

10. Step 2 – manage your records • Question: does anyone here know what a “DAN” is? • Public agencies are required by law to maintain records for a minimum period of time based on their content. Some records have no retention requirement. Others have to be kept for decades. • Private employers should also develop and use retention schedules.

11. Respect your employee’s privacy • Both state and federal laws require that specific employee records be maintained separately from the “personnel file.” • Examples: FMLA-related documentation, worker’s compensation files, and ADA-related documents. • Why is this important? The first step for an attorney representing an aggrieved employee is to request a copy of the employee’s personnel file. Failing to follow these rules can lead to bad results.

12. Step 3 – use your records wisely • A recent long-term, multi-disciplinary study has demonstrated that decision-makers who base their decisions on facts more often than not make better decisions than those do not rely on facts.

13. MLB vs. the NFL • In January 2014, an arbitrator ruled that Major League Baseball could suspend Alex Rodriguez for an entire season based on records that were created and maintained by the company that supplied Mr. Rodriquez with PEDs. • In July 2014, the National Football League suspended Baltimore Ravens running back Ray Rice for 2 games for assaulting his fiancée in an Atlantic City casino in March 2014. • The NFL subsequently suspended Rice indefinitely in September 2014 for the same incident after TMZ released a video of the assault.

14. Closing Argument Question: what is the best type of employment lawsuit? Discrimination, harassment, wrongful discharge? When you create accurate business records, maintain those records, and rely on those records to make informed decisions, then you put your employer in the best possible position to avoid litigation.