Preparation is the best way to protect a business against potentially devastating employment litigation. Comprehensive and timely documentation safeguards companies and other organizations against overly litigious and disgruntled employees and other parties. Let’s take a quick look at the optimal practices for maintaining thorough and accurate records that withstand scrutiny in court.
Proven Strategies to Minimize Litigation Risk
Documenting workplace events and policies creates a metaphorical legal shield that protects businesses against lawsuits. Even if a business prevails in such lawsuits, presenting a legal defense carries a financial burden. Moreover, litigation consumes valuable and limited time.
Comprehensive documentation includes detailed records of the following and more:
- Employee conduct
- Performance reviews
- Workplace policies
- Employment milestones such as date of hire, date of promotion/demotion, and date of termination
From the moment a prospective hire submits his or her resume to when he or she is demoted or terminated, every formality of employment should be documented for posterity’s sake. The accurate and timely recording of such details constitutes the evidence necessary to emerge victorious in an unlawful termination lawsuit or other legal action.
The challenge lies in documenting employee conduct and workplace policies in a clear, cogent, and compliant manner. When in doubt, lean on an employment law attorney for guidance. The guidance of an employment law attorney facilitates accurate recordkeeping and compliance with local, state, and federal laws.
Take a moment to view interactions with the business from an employee’s perspective. Even a slight employer documentation misstep or oversight can lead to a potentially financially lucrative lawsuit.
The following mistakes set the stage for a costly loss in the courtroom:
- Failure to fully comply with employment laws
- Failure to adhere to conduct and performance policies
- Missteps when hiring and terminating employees
Moreover, the failure to provide written policies regarding potential demotion and promotion decisions or even the rules governing potential leave in accordance with local, state, and federal law also presents an opportunity for litigation. Document the entirety of employee conduct with the nuances of internal company policies as well as laws, and the groundwork will be laid for a successful legal defense.
Preparation for Courtroom Battle
A single employment dispute can take a sizable chunk out of the bottom line. Such an outcome can be prevented with in-depth preparation characterized by thorough documentation. Such written logs, original documents, and even document copies can tip the scales in favor of the business instead of the plaintiff employee.
Such documentation is especially effective when the documents are date-stamped. Dates build a timeline of problems with the employee as they occur. The alternative is to proceed to litigation without documentation, which puts the business on a weak legal footing. If the plaintiff (the employee or other party) suing an employer has accurately dated evidence and/or witness testimony or other reliable evidence, they will have a better chance to emerge with a favorable decision or settlement.
Document Performance at Every Opportunity
The most important component of documentation is the accurate recording of employee performance. Ideally, businesses will perform quarterly employee performance reviews that take the form of written analyses saved and copied for potential use in court.
Even minor performance issues must be documented in detail to prevent an employee from winning an unlawful termination or discrimination lawsuit. At a bare minimum, such transgressions must be documented in the form of a memorandum, letter, or written/typed performance review.
Moreover, the documentation should specify the following:
- The specific mistake made
- Employee omissions
- Other inappropriate action
- The steps necessary for improvement that justify continued employment
It is in the employer’s interest to formally communicate the potential consequences for failure to comply. Ideally, such documentation will be presented to the employee at specific intervals to raise awareness of the issue, enhancing documentation or the employee’s work history.
Request that the employee sign the performance review or other documentation, then make copies to put in his or her personnel file. Having the employee sign the performance review demonstrates that he or she is aware of the issue, creating a formal acknowledgment that can be used as evidence in a court of law.
For example, a final sentence on the documentation stating something like “I acknowledge the performance-related issue and other information written above.” with a dated signature line below will suffice.
Err on the Side of Over-documentation
Though documenting employee conduct and other occurrences in the workplace takes time and effort, it is well worth it. Those on the fence about deciding whether to under-document or over-document conduct and other workplace occurrences are encouraged to err on the side of documenting with excessive detail, including:
- Transcriptions of conversations with employees
- Documenting offers to train or coach employees
- Providing a clear explanation for termination
Avoid vague wording that can provide terminated employees with the legal footing necessary for legal action. Make sure the document is detailed and thorough enough to be reviewed in depth by a third party, such as an employment law judge or government agency.