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What Jurors Conclude About Documentation


A recent article from the Maryland Employment Law Letter provides some interesting food for thought for nonprofit employers. The article outlines three unwritten assumptions jurors make about documentation presented to them during trials:

  1. "If it's not written, you never gave the employee a chance."
  2. "If it was documented, it's true."
  3. "An employer that documents is usually fair."

I think there are at least two more assumptions at work.

  1. The written word trumps the spoken word (i.e., if written performance evaluations indicate the employee is doing fine, verbal statements to the contrary aren't believable).
  2. If a situation isn't important to document, it must not be that important (i.e., is it worth firing over if it isn't worth writing down?)

Good documentation is at the heart of good human resource management. Effective human resource management is essential to minimizing the risk of employment claims. While avoiding these claims altogether is virtually impossible as long as you have employees, every nonprofit can take steps to manage employment risk.

In addition to paying close attention to documentation, consider:

  • Identifying an experienced employment attorney licensed in your state. Select someone willing to advise and assist your nonprofit on a pro bono or discounted basis;
  • Carefully reviewing your employment policies prior to taking adverse action against any employee (to make certain you are following your own policies);
  • Following the Golden Rule with your employees- give them the respect and courtesy you expect from others;
  • Eliminating or updating any employment policies that are not followed on a consistent basis in your nonprofit- remember that these policies can come back to haunt you in litigation.

Taking this advice to heart offers a strong start to fortifying the employment practices of your organization.

Reprinted with permission from the May 31, 2005 e-News, published by Nonprofit Risk Management Center ( a nonprofit serving other nonprofits through articles, books, online training, workshops, conferences and consulting with a nonprofit's slant on managing risk​​