Although there’s no sure-fire method to prevent a disgruntled employee from filing a lawsuit against an employer, there’s a readily available tool that can help you defeat the majority of lawsuits: documentation.
Employment lawsuits often are won or lost on the soundness and completeness of an employer’s recordkeeping practices. Here are a few tips to ensure the reliability and credibility of your documentation and to help you defend yourself if an employee sues.
Audit your documentation and performance evaluation policies and practices with the Employment Practices Self-Audit Workbook
Write it all down
Contemporaneous documentation. Nothing undermines an employer’s credibility like a document that was created long after the relevant event occurred. Even though there may have been no ill intent behind the employer’s delay, the implication is that it is trying to cover up a mistake. It’s imperative to document incidents at or very near the time they occur.
Just the facts. Avoid embellishments or exaggerations in documentation. Your statements are often admissible as evidence against you, so be concise and accurate, and stick to the facts. Keep in mind that you may end up having to prove what you said in your documentation or defending the language you used. A good rule of thumb is to ask yourself if you would feel comfortable testifying to the truth of your statements. If you have any hesitation, revise the document to reflect a more accurate version of what happened.
No personal opinions. Avoid stating any personal opinions that may not be supported by the facts. Documenting your dislike of someone or your disapproval of a particular situation may lay the foundation for liability. Depending on the situation, both the company and the employee who created the document could be held liable, so always maintain a fair and objective viewpoint in your records.
Policies and procedures. If the document is supported by or created under a certain company policy or procedure, refer to that policy in your writing. That will help you demonstrate your familiarity with company policies and procedures and your adherence to them. It also illustrates the attention to detail and thought that went into crafting the document, which typically lends an air of automatic credibility.
Signature and date. A document is most useful when you know when it was written and by whom. Make it a practice to date every official document created in your organization, and have the preparer sign it and print his name and job title. Train every supervisor, manager, and executive in your organization on the significance of this practice. Also be sure to advise your employees to sign documents in their official capacity or on behalf of the company.
Explanations. Provide a clear explanation of the document’s purpose if it isn’t apparent. For example, if the document relates to a particular meeting, state the date and reason for the meeting, the names of the employees who attended, and the issues discussed. Similar information should be recorded for business-related telephone calls and other communications. If any type of follow-up is required, document why and when you expect to do it.
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Performance and disciplinary documents. Take special care when documenting performance issues and disciplinary actions. Require an employee whose performance is being reviewed to sign and date the document. If he doesn’t agree with your assessment of the situation or his performance, ask him to note his objections and sign below his statement. If he refuses to sign anything, document his refusal to sign the document and impose appropriate discipline if that’s your policy or practice.
The person who prepared the document should provide a clear explanation of the performance issue, the disciplinary action decided on, and the action that’s generally taken in similar circumstances. If there’s any difference between the disciplinary action taken in this case and the action that’s usually taken, provide a detailed explanation of the difference.
No promises. Avoid promissory language in your documents. As we’ve learned from court cases interpreting employee handbooks, promissory language can support a contract claim against your company. Therefore, it’s always advisable to include a disclaimer at the bottom of any documents your company disseminates to applicants and employees that says something like “NOT A CONTRACT” or “EMPLOYMENT IS AT WILL” or “THIS COMPANY IS AN AT-WILL EMPLOYER.”
Basic Training for Supervisors guidebook series, including documentation and performance evaluations
Your document retention practices are just as important as what you say in your documents. Your employees may be well versed in the art of complete documentation, but if you can’t locate your records when the need arises, they’ll be of little use to your company.
In the age of electronic discovery (the exchange of information before trial), the inability to locate documents like e-mails and other computer-based information can be extremely harmful to your defense. Therefore, it’s critical to have a well- organized and well-publicized document-retention policy.
At its most basic level, your policy should address the general categories of documents to be maintained, who’s responsible for maintaining them, and where they will be kept. It also should state how long a given type of document must be maintained. Your policy should identify who must be familiar with it, how frequently it’s reviewed, and who’s responsible for reviewing it.
Drafting an effective policy often requires the combined efforts and commitment of management, HR, and IT. Make sure that everyone who’s in any way responsible for documentation is properly trained to follow your document creation and retention policies, and you’ll help protect yourself from liability.