There are two kinds of employers. The one that has been sued and the one that will be sued. The former knows that litigation is not fun. Lawsuits distract from the business and cost thousands of dollars in attorneys’ fees. The ultimate goal in defending litigation–winning summary judgment. The path to victory, however, must start even before the would-be plaintiff’s attorney files the complaint. Defensive documentation is the process where an employee’s performance and behavioral issues are memorialized so that a clear record can be preserved.
Write-ups. Do not be afraid to formally write-up an employee for his or her failures. The employee will not be afraid to sue you when you terminate them. Write-ups should contain detailed facts, not conclusory assertions. Avoid, “Sam is always late.” Instead try, “On October 1, 2013 Sam arrived to work at 8:17 A.M., 17 minutes after his shift began.” Provide the write-up to the employee and have him or her acknowledge it. Write-ups should also contain a description of what counseling was provided to the employee, and also state what warnings were given to the employee.
Contemporaneous documentation of the termination. It is a best practice, if the employee is being terminated for cause, to provide the employee with a correspondence informing them of their termination and the reasons why they have been terminated. Be sure to include every legitimate reason. It is very difficult to go back after the fact and add reasons, and it is even more damaging to find out that one of the reasons was unsubstantiated. Have the employee acknowledge the letter. If they refuse to acknowledge it, try mailing it to their last known address via certified mail return-receipt requested. It is also a best practice to utilize an internal “change in status” form to document/process the termination. Again, this form should also state every legitimate reason why the employee was terminated. If there is not a box to check with an appropriate category, create it. If there is not enough room to count the reasons, add an additional page.
The most important part of this process is to enforce the disciplinary policy equally on all employees. In all forms of documentation you should use clear language and short sentences. Leave nothing to interpretation or conjecture. Simple language is better. Also, proof read before you submit any document to an employee or place the document into a file. Your employment attorney will thank you, and you will thank your employment attorney.
Stephen J. Quezada
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