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SHRM Newsletter: What Not to Say In Documentation
Posted on Dec. 1, 2014

This is Utah SHRM Legal-mail no. 2014-22 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).







WHAT NOT TO SAY IN DOCUMENTATION: In these updates I often tell you what you should say in disciplinary documentation or performance reviews. The other day I read an interesting article from an author who focused on what you should NOT say in such documentation.  Here is the list from the author: “(1) Personal opinions; (2) Rumors or speculation about the employee’s personal life; (3) Theories about why the employee behaves a certain way. (Don’t practice psychiatry without a license.) For example, don’t call an employee “crazy.” Instead, document behaviors; (4) Legal conclusions. (Don’t practice law without a license.) For example, instead of saying, “Your conduct was sexual harassment.” consider saying “We have concluded that you violated our sexual harassment policy.” (which doesn’t necessarily mean that the law has been violated), or “Your massaging Jane’s shoulders on two occasions was inappropriate and must not be repeated.” This makes for a better defense should the complainant sue for sexual harassment; (5) Information about the employee’s family, ethnic background, beliefs, or medical history; (6) Your opinions about the employee’s career prospects; (7) Unsubstantiated accusations; (8) Promises or threats; (9) “Always” or “never.” For example, “Mike is always late.”” And here is a bonus one from me: (10) do not use words or phrases that are “code” for protected classes, e.g. referring to someone as “old school,” “deadwood” or “needing new blood” could be code for age bias. Sometimes what we do not do is as important as what we do.

BE ALERT TO STATE EMPLOYMENT LAW CHANGES: It is very common today for an employer to have employees living/working in multiple states. Such employers must stay informed about changes in the employment laws of the states where they have employees. Changes commonly occur after elections. For example after the November 2014 elections, some additional states (besides Colorado and Washington) now allow for the recreational use of marijuana (Oregon, Alaska, District of Columbia) and some states have raised their minimum wages (Alaska, Arkansas, Illinois, Nebraska, South Dakota). Even cities get in on the action, for example voters in Oakland, California, passed a minimum wage and paid sick leave law. Do you have a mechanism in place to stay informed about these changes in the employment laws of the states and cities where your employees work?

DEPRESSION AT WORK CAN BE A LEGAL ISSUE: The holiday season we now are in is often one of great joy and celebration, but it can also be a time of great sadness and depression for some employees. According to a recent national SHRM article, 40% of employees surveyed say that they have missed work due to depression. See: Depending on the nature and severity of the depression involved, such employees might be protected by the Family and Medical Leave Act (FMLA), the Americans With Disabilities Act (ADA) or similar laws. When depression rises to the level of a serious health condition, eligible employees working for covered employers must be advised of their rights to take FMLA leave (up to 12 weeks in any 12 month period). Depression also could constitute a disability because it can be an impairment that substantially limits major life activities (e.g. sleeping, concentrating, communicating, working). If it is covered by the ADA, an employer must work with the involved employee to determine if the condition can be reasonably accommodated, e.g. with leave, schedule alterations, etc. Employers often forget that FMLA and ADA cover not just physical injuries and illnesses, but also mental conditions like depression. Do not make that mistake with your employees.

FINAL REGS OUT FOR NEW FEDERAL CONTRACTOR MINIMUM WAGE: If you are a federal contractor, you may have to pay your employees more next year due to an Executive Order. What are Executive Orders? They are presidential enactments on how the agencies of the federal Executive branch should operate (e.g. with whom and under which circumstances should the government enter into a contract). They often result from gridlock with Congress, but an Executive Order is not as far-reaching as Congressional enactments. In February of 2014, President Obama signed an Executive Order requiring certain federal contractors pay employees a minimum wage of id="mce_marker"0.10/hr. This order applies to construction, service and concession contracts. The Department of Labor (DOL) issued proposed regulations implementing this order in June of 2014 and final regulations were issued by DOL on October 7, 2014. The new minimum wage will apply to new contracts entered into in 2015. Note that many states are likely to impose an even higher minimum wage, which will apply instead of the one in the order. You can read about the new final regulations here:

EMPLOYER HOLIDAY PARTY TIPS: This update appears regularly here at this time of the year because…‘tis the season for lights, joy, peace, carols and warnings from employment lawyers about employer holiday parties. I have read lots of recent articles warning what you should do or not do on this topic. Why? Firm parties are employer events and employers may be liable for what happens there. Here are summaries of three of the best tips I have read. First, politely but clearly remind people that while you want them to have fun, you also expect that they will behave themselves at work parties just like they would at work. In other words, being at the firm holiday party does not give you immunity from sexual harassment. Second, recognize diversity. A lot of your employees celebrate Christmas, but probably not all of them do. Include other related holidays too and have an all-holiday party so all your employees know they are welcome. Finally, beware and be intelligent about the service of alcohol, because it creates the risk of too much reduced inhibition and it may cause problems if people drink and drive. If you do serve alcohol, be mindful of the risks and get legal advice on the best way to try to mitigate them.

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mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition


OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012