Question:

I recently attended a seminar for business owners and the person who was presenting kept stressing the need to document things that happen in the workplace, in case an employee ever tries to sue or make some kind of claim. I guess I understand the importance of documentation, but am not really sure exactly what I’m supposed to document, or how. Do you have any guidelines on this?

Answer:

As you said, documentation is crucial for employers such as yourself. While you will hopefully never find yourself involved in litigation, the truth is that many employees end up suing their employers for one reason or another, or bringing claims for things like missed meal periods or unpaid overtime. In many of these cases, the outcome of the lawsuit or charge can hinge upon whether the employer has maintained reliable records that will allow it to defend itself in light of the claims being made against it. The following are some record keeping tips that every employer—big or small—should be aware of and should try to follow:

  • Keep accurate records. Anything you document should be as accurate as possible, so that it will be reliable should you ever need it in the future. This is particularly important with respect to matters like timekeeping, the accrual of vacation and other benefits, the facts involved in any type of employee misconduct, and the details of any harassment/discrimination complaints and what was done to address them. If the reason for the document isn’t obvious on its face, you should include a statement of the reason that the document was created in the first place.
  • Keep factual records. You should always avoid embellishments or unnecessary descriptions in your records, especially with regard to personnel evaluations and/or disciplinary actions. Because these records may be admissible as evidence in the context of a lawsuit, any accounts of poor performance should be factual and accurate, and should also be objective in nature. Things like name-calling or jotting down your personal opinion of an employee on the notes in their file could lead to embarrassment—or worse—if they are exposed at a later date.
  • Record the “who” and “when” of each document. Internal documents should always contain information about who prepared them, who was involved in the process (e.g., an internal investigation), and when the related employment action was taken. You should also make it a practice to have employees sign off on things like disciplinary notices or internal memorandums, and you should always retain a copy for your files. If an employee refuses to sign something, you should note this—in writing—on the document in question.
  • Refer to policies where applicable. If you take some type of action with regard to an employee (such as discipline or termination) that relates directly to an internal policy or procedure, you should note this in your records. For example, if an employee receives a written warning for tardies, you should refer to your company’s attendance policy in the disciplinary notice. This helps demonstrate consistency and your adherence to policy, and also provides evidence of a legitimate reason for the disciplinary action that was taken.
  • Stay current with your record keeping. You should always document incidents as they occur, rather than waiting until later. Documents that are prepared too long after the incident took place may appear less credible than if they had been done right away (when your recollection was the freshest), and can also give the appearance of having been fabricated after-the-fact, as a response to the litigation or claim that is now pending.
  • Stay organized. You should always be able to locate employee documents quickly and efficiently. Keeping organized files (both hard copy and electronic) will allow you to have whatever information you need at the tips of your fingers, should you ever need to retrieve it.

With any luck, you will never be placed in circumstances where you will need to defend yourself against a claim by an existing or former employee. However, should such a situation arise, having complete, accurate, accessible records will help make the process easier and less stressful.
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