It's All In The Paperwork

It happened, again! A client in the public sector called about a disciplinary matter involving an insubordinate employee. Apparently, the worker had engaged in a plethora of improper conduct over a period of several years. While there are certain time limitations regarding misconduct under New York’s Civil Service Law, there seemed to be enough activity which had occurred within the statutory period to prefer disciplinary charges based on the description given to me by the client. Then, I asked the $64,000 question ... “what documentary proof do you have?” There was silence on the other end of the phone, and then a lot of hemming and hawing about how everybody “knew” the employee was routinely late for work, insubordinate, etc. Oy vey!

Regardless of whether the situation involves public or private employment, the mantra for employee discipline is “document, document, document.” When faced with disciplinary issues, an employer generally does not want to rely solely or mostly on testimony as witness credibility then becomes the main focus of the inquiry. That can backfire (big time), particularly if the witness is a current employee who may be viewed by the other side as having a vested interest in testifying favorably for the employer in order to keep his/her job. Also, recollections can change drastically from the time of witness interviews to the point where sworn testimony is taken. It’s no fun when a witness changes his/her story in front of the trier of fact and doesn’t bother to tell the attorney. Phrases such as “what the !$%#” run rampant through one’s head on such occasions. Contrast that nightmare with a situation where documentary evidence exists in the form of disciplinary warnings or memoranda issued by a Supervisor which detail the misconduct and provide the employee with an opportunity to respond in writing. I think you get the picture.