This article is about paper. Paper can win or lose a case. In the Federal service, trees are murdered by the billion and turned out in an equal weight of paper for each tree. I was always convinced that flooding was not a problem at any Federal facility in which I worked because the stored, filed and unfiled paper would likely float the building. The trouble with paper in labor and employee relations, particularly in discipline and performance cases, is its random generation and retention.
To lose a case, simply create and retain emotionally charged emails between and among indignant managers complaining with copies to everyone what a screw-up “Harry” is. (I got heat from using Harry as the villain in a previous article but am reluctant to ascribe villainous acts to Mary lest I be accused of political incorrectness – so sorry Harry, you’re still it). E-mail, however spelled, is insidious so I largely refused to use it to create discipline or performance drafts unless they were going through the lawyers. The lawyers get a free pass since what they generate or edit is usually undiscoverable as “Attorney Work Product”. A hint – If you’re an ER or LR specialist, capture a friendly lawyer and run your paper through them. There is no “Employee Relations Specialist Work Product rule”.
So how do you work the paper?
1. Get the Paper under Control – Establish a case file
This is going to sound a little obsessive/compulsive but your case file should have two sections. One for evidence and signed documents, the other for your notes, contact information, to do lists, drafts, chronology etc. (More on keeping a chronology in a later article – If you don’t keep one, you ought to be canned for poor performance.) The reason this is important is that you will only keep the evidence file, the other one you will destroy when the proposed action is delivered to the employee. There is nothing magical about your notes, drafts and jottings. Dump them when the case goes official.
2. Manage the creation of documents
Limit the number of copies of drafts of actions, letters, etc. that you allow out there and collect them or ensure they are destroyed by the holders – better yet destroy them yourself. Nothing is more fun at a hearing that having the appellant’s attorney ask your proposing official why the removal was first considered as a ten-day suspension. He knows this because someone gave him a copy of the draft. My advice is that you number the copies of a draft and make sure you know where they are.
3. Remember that paper, particularly paper in electronic forms, like a diamond, lasts forever
I know email is convenient. I know everyone is locked into it. I know you have to service or be serviced over distances. But please remember that many people do not think before they send off an email. It is so easy to hit the reply key and unburden yourself of all your worldly cares. It is even easier to retain electronic drafts and notes in word processing files. Do I sound like I’m repeating myself about this? Well I am. It’s that important.
4. Paper is Interpreted against its writer
In How Arbitration Works (by Alan Miles Ruben, Frank Elkouri, Edna Asper Elkouri BNA Books 6th edition (December 2003)) there is a great deal written on interpreting contract language. The same principles apply here. If what you write is ambiguous, it will be interpreted in the least favorable light against the writer.
You are assumed to be a competent practitioner putting out official documents on behalf of the Federal government. In other words, judges expect you to be able to write whatever it is as you want it to read. So if you say, for example “Harry appeared to have alcohol on his breath” as opposed to “Harry’s breath had the distinct smell of alcohol” make sure that’s what you mean. There is a world of difference between those two statements.
5. It should be written for the anticipated reader
The readers are the employee involved and the judge. Assume that any document you develop will also be read by a third party (such as an MSPB or EEOC judge), who is not familiar with the situation. This will help ensure that any and all relevant information (i.e. history of the problem, previous counseling, referral to Employee Assistance Program, acronyms, physical and emotional environment, context of an incident, etc…) is included.
6. Plain English is good – technical or legal writing is usually bad
Whereases, heretofores, parties of the first part, etc. have no place in a discipline or performance actions. There’s a great book : Plain English for Lawyers by Richard C. Wydick. You can get a copy for less than $4.00 on Amazon.com. It really is a shame that many lawyers and ER/LR folks have never taken the time to read it. Remember the first reader is the employee and if the employee can’t understand what’s being said, how do you expect a judge to?
7. No matter who drafts the paper, make sure the manager owns it
If you’re in the business of drafting performance or disciplinary actions for someone else’s signature, get out of the ownership business. The very, absolutely last thing you want to hear a manager say on the stand is, “No I don’t know what that means. The Employee Relations Specialist said it had to be written that way. Case over. I have gone so far as to put a cover memo on a draft with some managers that said, “You are personally responsible for the content of this document in its final form. The attached is a draft. If you do not agree with something it say or the way it is written, please change it to the way you want it to read.”
8. Edit mercilessly
I believe the best drafters are the most skillful editors. Write sparsely as opposed to flowery. Be absolutely blunt. This may worry some managers who are used to official correspondence which appears vague but is in reality meaningless. Seriously, tell the story as it unfolded in simple terms. Explain things not readily apparent to an insider. Put the facts in linear time order. Work the dictionary and thesaurus.
For those of you who write or sign actions, I hope this was helpful. Stay tuned for further articles on related subjects as this is the meat and potatoes of the employee relations business. If I can help, don’t hesitate to write.
As always, these are my opinions and mine alone.
