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Importance of Documentation in Employment Disputes

by Gary S. Fealk

Discipline and termination are issues for virtually all employers. However, many employers make employment decisions with incomplete knowledge of the events leading to the discipline or termination. Having a system for investigating and documenting workplace incidents helps employers make decisions with better knowledge of the facts. Proper documentation also reduces the risk of legal liability if the discipline or termination is challenged in a grievance or a lawsuit.

Mastering HR Report: Discipline and Documentation

Why document?
Consistent documentation is essential for employers to properly evaluate employees and avoid liability connected with disciplining and terminating employees. Accurate documentation allows decisions to be made with as much information as possible. It also ensures there’s a lasting record of the reasons for a termination or disciplinary action, even if memories fade or the decisionmaker leaves the company and cannot be located. Finally, documentation allows companies to be more consistent in their decision making, thereby reducing the risk of perceptions of favoritism or discrimination.

What to document
Absenteeism and tardiness. Unjustified absenteeism and tardiness are tremendous problems for employers. Accurate record keeping and consistent and fair administration of an absenteeism policy are important in maintaining an efficient workplace.

Deficient performance. If you maintain accurate documentation of deficient performance, it will be much easier to correct the deficiencies or sustain any discipline you implement as a result of poor performance.

Misconduct and work rule violations. When an employee engages in misconduct or violates a work rule, the incident should be discussed with the employee and documented by the supervisor. The supervisor should document the fact that he discussed the incident with the employee.

HR Guide to Employment Law: covering 14 areas of employment law including discipline and documentation

How to document
Whenever you document an employee’s absenteeism, deficient performance, or misconduct, the documentation could later become the subject of a grievance or a lawsuit. As a result, you should draft your documentation with the idea that a third party who knows nothing about the situation will be able to read the statement and understand what took place.

The documentation should be dated contemporaneously with the incident. Draft the documentation as soon as possible after the incident so the details are fresh in your mind. A document that is written shortly after the event occurred can be persuasive evidence in a proceeding later. If there are eyewitnesses to the incident, name them in the documentation. Also, identify any work rules that were violated.

Always describe in detail the conduct that occurred, but don’t embellish. If a history is necessary to understand the incident, recite the history. If you discussed the incident with the employee (which you should do, by the way), state that you did so in the documentation. If you are administering discipline, have the employee sign a document that acknowledges he received the discipline. If he refuses to sign, document the fact that he was present but refused to sign the disciplinary letter. Finally, the documentation should be signed by the person preparing it.

What if the employee disagrees with the discipline?
If the employee disagrees with the disciplinary document and requests an opportunity to place his version of events in his personnel file, you should accommodate his request. By allowing the employee to document his version of events, you show that you are being fair. In addition, it will be difficult for him to later expand on his account of the incident.

Bottom line
Documentation can be the key to avoiding litigation by helping decisionmakers be more consistent in their decisions. If litigation does occur, documentation helps refresh the memories of witnesses and lends credibility to oral testimony.

Gary S. Fealk is an attorney and shareholder in Vercruysse Murray & Calzone, P.C., in Detroit and an editor of the Michigan Employment Law Letter. You can reach him at (248) 433-8707.