An Employer’s First Line of Defense: The Importance of Good Documentation
A lot has been made of employer documentation in the last several years. Most of the discussion, however, has focused on document retention policies. While such policies are necessary for every employer, they could be irrelevant if the employer isn’t documenting correctly in the first place. Effective documentation is essential in employment litigation. Without it, an employer is open to serious challenges from plaintiffs regarding whether the actions occurred as the employer maintains, and if so, whether the actions were taken for the reasons articulated by the employer. Alternatively, an employer that produces and retains effective documentation may insulate itself from many forms of employment liability. When faced with documentation, a plaintiff’s ability to poke holes in the employer’s story is greatly reduced. Further, good documentation allows the employer to streamline its legal defense, laying out the facts clearly and authoritatively, and cutting legal costs in the process. This article will explore what employers should be documenting and how they should do it.
What Should be Documented?
As a general rule, the more documentation an employer is able to provide regarding the communications with, and actions taken toward, its employees, the better. Anything that defines an employee’s duties or responsibilities, details an action taken by an employer, explains the decision-maker’s rationale in taking the action, or evidences communications between supervisors and their subordinates can prove helpful. When things are documented, they are less likely to be disputed by a current or former employee, and when they are challenged, they are much easier to defend. Specifically, employers would be wise to document the following:
•Initial employment records: Documentation should include records obtained from the employee at the outset of employment: the application, any authorizations obtained from the employee (i.e., background check or drug testing), the employee’s W-4 and I-9 forms, and any benefit election/waiver forms.
• Signed acknowledgment: A critical piece of documentation that should be obtained at the inception of the employment relationship is a signed acknowledgment from the employee stating that she received the employer’s important policies and/ or employee handbook. It is critical that certain policies such as the company’s equal employment opportunity and harassment policy, the at-will employment policy and the Family and Medical Leave Act (FMLA) policy be communicated to employees at the inception of employment. Proof that employees received certain policies is essential in some kinds of employment cases and is helpful in virtually every employment case.
• Updated acknowledgments: When policies or handbooks are updated and distributed, acknowledgments of receipt should be obtained from existing employees and kept in the employee’s personnel file.
• Training documentation: Proof of attendance at key training events can be important in employment litigation. Employers should document employees’ attendance at harassment training, safety training and training on other important aspects of an employee’s job.
• Attendance: Attendance records should be accurate, current and maintained consistently for all employees who are subject to a company’s attendance policy. Unexcused absences should be documented as such. Excused absences such as FMLA-related absences should be documented to ensure that they are not considered in connection with discipline arising out of attendance issues.
• Performance evaluations: Make certain that managers consistently and timely perform employee evaluations at the scheduled intervals and that those evaluations are maintained in the employee’s file.
• Misconduct: Regardless of whether you think an employee’s isolated actions will lead to discipline, all misconduct must be recorded. Documentation that is created contemporaneously with the event is more reliable than documentation created after the fact.
• Discipline/counseling records: All oral and written discipline or counseling should be documented in the employee’s file. Employers should document performance and discipline problems carefully, contemporaneously, consistently and thoroughly. It is important to make certain that performance-related documentation in the employee’s personnel file appears consistent with that of other, similarly-situated employees.
• Employee change forms: Include records showing changes in title, responsibilities, pay, transfers and other terms and conditions of employment in the employee’s file.
• Investigations and complaints: Document investigations and complaints relating to or raised by the employee. Employers should retain documents that reflect the nature of the complaint, what action the company took in response, who the witnesses are, and the ultimate disposition of the complaint or investigation. For minor issues, maintaining related documents in the personnel file is acceptable. For more serious or sensitive complaints or investigations (i.e., harassment or discrimination complaints by or against the employee), the employer should maintain a separate file.
• Records relating to medical or disability issues: It is important to maintain records containing medical information, but they should be maintained separately from the personnel file and treated as confidential. Examples include records relating to worker’s compensation claims, an employee’s disability or request for accommodation under the Americans with Disabilities Act, and certification forms and supporting documents under the FMLA.
• Post-termination records: The employer should maintain a copy of the employee’s DOL Separation Notice (required in Georgia), a copy of any correspondence or documentation relating to the return of company property, and a copy of the COBRA notice that went to the employee in the employee’s file. Records (including any transcripts) of any unemployment compensation proceedings should also be maintained by the employer.
Important Tips for Supervisors when Documenting
After going through litigation involving a current or former employee, a supervisor is often more diligent with documentation. Throughout the litigation, that supervisor sees how helpful having certain documentation was (or could have been) in defending the company. In addition to better understanding what must be documented, these supervisors also learn how to enhance and improve their existing documentation. The following is a list of insider tips that can help supervisors avoid the mistakes and omissions they will regret if litigation occurs:
• Document in the Moment: When something noteworthy happens, document it. In the instance of employee misconduct, document it as soon as you have the opportunity. Don’t wait until you’ve decided whether to issue formal discipline to document the underlying conduct. Even if you don’t plan on issuing discipline for isolated conduct, document it – you never know when isolated conduct will repeat itself and become a pattern of behavior. Contemporaneous documentation can be powerful evidence, as it is not only more accurate than testimony regarding the incident months and years later, but it reflects the true rationale of the decision-maker when the decision was made.
• Document Diligently: Err on the side of overdocumenting. If you aren’t certain whether there needs to be a record, document it. Documenting is time intensive and tedious, but you must be persistent – every issue has the potential to turn into litigation.
• Document Professionally: Remember, a primary purpose of documenting is to provide evidence during litigation. Document as though everything you write will one day appear in front of a judge and jury. Use appropriate language, write clearly and succinctly, and be thorough. Make certain that what you write makes sense without having to explain things that aren’t written.
• Document Correctly: Make sure you follow all company procedures without exception. If a document requires an employee’s signature, get it. Often times if procedures are not followed, the documentation can be disregarded for evidentiary purposes. For example, if a notice of discipline requires an employee’s signature acknowledging his review and you give it to the employee without obtaining his signature, the employee may be able to successfully assert that he never received the notice at all.