One of the most common types of lawsuits our clients face is wrongful termination from a prior employee. Should your business ever get sued for the same, one of the most useful pieces of evidence in defending such actions is the documentation related to that specific employee during their employment. Seems simple enough, right? But the key is what you include in such documentation.
When an employee behaves improperly at work, it can be uncomfortable to take corrective/disciplinary action and document the same. However, wrongful termination lawsuits often come down to one’s word against another’s. When detailed documentation is maintained and created close in time to the incidents in question, it provides employers a much stronger defense, and frankly, provides employees with proper notice to correct the offending behavior. In other words, if you do the work now, you can save yourself the pain in the long run knowing you’ve taken the appropriate steps to defend yourself from these claims in the future.
Generally, it is critical to take complaints you receive seriously and to investigate the same. For more information on internal workplace investigations, you can check out our resource videos here: Part 1 and Part 2. In addition, documentation should be clear, concise, free from emotion or unnecessary commentary, and include performance issues and the resulting consequences.
Be sure to include in your documentation:
- The dates of any incident or conversation between you and the employee.
- A summary of the incident or conversation had.
- A copy of any written warnings given to the employee—or a copy of any written communication confirming that a verbal warning was given.
- A copy of the employee’s signature acknowledging receipt of any warning (the employee must sign a document that acknowledges receipt of each warning).
- A summary of your warning or conversation with the employee and a summary of the employee’s response/reaction thereto.
- Any performance-or-improvement metrics and related datelines for accomplishing such.
Termination decisions should generally be supported by:
- A record of the employee’s prior and current violations of policies or procedures or performance-related issues (e.g. absenteeism and/or insubordination).
- A history & summary of conversations with the employee and any disciplinary actions against him or her.
- A summary of performance or improvement metrics that the employee failed to achieve.
It would also be useful to document as relevant in your business: Employee 90 day/annual appraisals, details of meetings that took place to determine an employee’s progress toward established goals, and notes regarding the employee’s level of participation throughout the process. Documentation is critical to establishing credibility before a court and supporting a termination decision. Employers must objectively document any incidents, poor performance, other grievances, and conversations with their employees.
If you want to know if your documentation practices are sufficient to protect your business, please contact us at firstname.lastname@example.org.
This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between MNK Law and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.