Amanda DeMatteis: Hi, Josh.
Josh Goodbaum: Hi, Amanda. What are we talking about today?
DeMatteis: Well, we’ve done a few videos in the past about employees coming to us saying, “Hey, you know, I got called in for a coaching session with my boss, and I’m not sure how this is going to go. Should I record it?” And we’ve done videos about when you should record, when you shouldn’t record, what the lay of the land is on the law in Connecticut.
But another one that does come up is maybe an employee gets called in for coaching of some kind or just has a conversation that they’re not feeling quite settled about and they’ll say to us, “Hey, should I put this in writing? Should I put something about this exchange that may have rubbed me the wrong way or may have felt important in one way or another in writing?”
We get this question a lot. Tell us what you tell a potential client that comes to talk to you about this.
Goodbaum: Yeah, I think the answer to this one is easier than the answer about recording because the answer to “Should I put it in writing?” is YES. Anything worth saying to your employer is worth putting in writing. Why? Because there might be a question later about who said what, and there can’t be a doubt about what’s in a contemporaneous email. This is true all the way through the employment relationship.
So, think about a situation where there’s some real tension, as you said. Maybe you’ve been put on a performance improvement plan. Maybe you think you’re being subjected to discrimination or retaliation of some kind. If you’re gonna go to HR and tell somebody about that – “Hey, I think I’m being treated differently because of my disability, my sex, my race, whatever” – it’s worth following up with an email. And you can tell the person you’re complaining to, “Hey, here’s what I want to say to you, and I’m gonna follow up with you with an email.” And in that email, you want to say, “Hey, just wanna memorialize what I said in this conversation. If I didn’t express this clearly or you have any questions, let me know.” That way, it’s quite clear in the written record what you said if ever there’s a question about it.
It’s true likewise if you have an employment contract that requires you to give notice that you’re going to leave. If you’re going to leave, don’t just tell your employer verbally you’re gonna leave. Maybe they didn’t hear you. Maybe they’ll disagree that you gave that notice. Follow up with an email: “Hey, I’ve given you notice that my last day here at ABC Department Store is going to be December 31st.”
It’s true likewise on the way into an employment relationship. I can’t tell you how many people – this is more true of executives – are negotiating an individual employment agreement and maybe the employer has said, “Oh, yeah! I mean, if it doesn’t work out, we’re going to pay you a severance.” Well, does the employment agreement say that? If not, it’s worth putting in writing. Right? Otherwise, you can’t rely on that promise from them.
Maybe you’ve got some sort of dispute about a non-compete or other restrictive covenant and your new employer says, “Oh, if you get sued, we’re gonna defend you. We’re gonna pay for your lawyer.” Fantastic! Let’s put that in writing. Anything worth saying between an employer and an employee is worth putting in writing, and you as the employee wanna make sure that you are documenting, just in case.
As lawyers, we’re in the risk management business, right? It’s sort of our job to see the worst way things can go. So, we’re prone to be just maybe a little bit paranoid, but paranoid doesn’t necessarily hurt. And it’s often a good idea to think, “If this goes sideways, what kind of documentation am I gonna want to show that we had an agreement, that we had an understanding back when we had the conversation?”
DeMatteis: Yes, this is great advice and we really get this question a lot. I have one follow-up question for you, Josh, cause this just came up recently with a client that I was working with. Their employer said to them regarding a performance improvement plan, “If you have any other questions about this, don’t put it in writing – ask me verbally.” Does that change your advice at all?
Goodbaum: No, exactly the opposite. I think you should definitely put it in writing. In fact, in Connecticut, there is a reasonable argument that your action of putting a written complaint about your performance improvement plan into your personnel file is protected activity. And if your employer treats you differently because you have engaged in that objection, you might have a decent wrongful termination case.
So, just because your employer says, “Don’t put it in writing,” doesn’t mean you should follow their advice. In fact, think about the times when somebody says to you, “Let’s not put it in writing.” Usually something is a little bit sketchy about that situation.
DeMatteis: Absolutely. Thank you, Josh. Thank you for watching, and we’ll see you next time.