As an employer-side defense attorney, I assist employers with employment issues from pre-employment advice through post-employment litigation for alleged wrongful termination. During litigation, I am sometimes faced with facts that would suggest the employer engaged in unlawful conduct because the documentation is lacking. When I give a presentation to human resource professionals, I joke they will hear me say “document, document, document” at least 20 times.
Not every company has an in-house HR department; even if they do, HR may not be apprised of every action supervisors are taking or failing to take. For businesses without an HR department, company policies regarding standards of conduct should be reviewed for legal sufficiency before being put into practice and then followed closely when making employment decisions. Companies with a dedicated HR department must train first-line supervisors on how to properly document employment actions, taking institutional knowledge and precedent into account to ensure company policies are uniformly followed and enforced.
Of course, employers cannot formalize every instance of employee performance issues.
For example, a first-line supervisor may verbally correct an employee who fails to abide by company standards. The supervisor should send an email to the employee later in the day to document that the employee received a verbal warning, preferably citing the specific provision in the employee handbook or policy the conduct violated. This type of documentation is crucial when defending a wrongful termination claim because it shows the employee was written up for a legitimate, non-discriminatory business reason.
Having reasons for termination typed out ahead of time, with citation of the specific company policies or provisions of the employee handbook as the basis for termination, is a best practice that can prevent issues from being called into question later. When assisting clients prior to employee termination, I tell them to treat the documentation as if it was handed to them as an exhibit during a deposition: The documentation should be honest, concise and specific, and include the basis for termination.
Documentation of employee counseling regarding performance expectations is essential when defending against a wrongful termination claim but not all documentation is “good” documentation. Incorrect documentation in which the supervisor verbally terminates an employee and states the reason for termination was a violation of a company policy but then provides additional reasons for termination that were not related to a specific aspect of official policy can become points of contention. Although there was no ill-intended purpose on the supervisor’s part, providing additional explanation may create enough of a fact dispute that it can lead to protracted litigation and may preclude summary judgment.
Intentionally approaching employment decisions with clear documentation requires more time on the front end but will ultimately mitigate potential liability. Consult with your human resources department and legal counsel to create and review official procedures with best practices in mind.
* This article first appeared in The Journal Record on June 24, 2023, and is reproduced with permission from the publisher.