Have you ever heard the phrase, “if it isn’t documented, it didn’t happen”? Well, this is how government agencies, courts, and other tribunals view the evidence in employment litigation matters. Whether you win or lose an employment case often hinges on what documentation you do — or do not—have. Your documentation should be consistent and “connect the dots” for a third party who knows nothing about your business, your policies and practices, or the plaintiff’s employment.
Generally, the following documents will be important for your defense to a claim against the company arising out of employment:
These types of documents are among the first to be requested in discovery pursuant to litigation. Indeed, at the beginning stages of employment litigation, the investigating administrative agency such as the Equal Employment Opportunity Commission (EEOC) will request copies of these documents. Not only do they provide context and set the background for the claim being made against the employer, but a well-written job description may win the day when an employee claims that the employer failed to provide a reasonable accommodation under the Americans with Disabilities Act (ADA). An updated, accurate job description that sets forth all of the essential functions of the position will be a key piece of evidence. If the job description requires the employee to lift approximately 50 pounds on a daily basis, and a disabled employee is unable to perform this essential job function, then a reasonable accommodation cannot be made. Under the ADA, an employer is not required to eliminate an essential function of the position to accommodate a disabled employee.
We all hope that employment litigation is a remote possibility. Yet effective risk management practices require you to be prepared for the worst case scenario. All of the above-referenced documents will be relevant to just about any employment claim. You should ensure that you are maintaining such documentation with respect to employees at every level and in a clear and consistent manner. Be deliberate in deciding what goes into these documents and implement processes to ensure consistency. For example, supervisors should use a consistent format in disciplining employees, with the same information and level of detail required in every instance. Additionally, your documentation should establish that employees who engage in similar types of misconduct are met with the same consequences. Your documentation must be understandable to both the employee, as well as someone who has never seen it before. This will also go a long way in presenting yourself to the EEOC or a jury as a professional, credible employer who is serious about complying with the law.
Finally, documentation with respect to individual employees should be internally consistent. For example, a disciplinary warning for refusing to perform a job duty completed within three months of a written commendation for going “above and beyond” is puzzling and appears inconsistent which hurts your credibility in a case where you are defending a termination.
Getting your house in order, so to speak, and maintaining these critical documents will put your organization in the best position to defend itself against an employment claim.