Documentation is Key

By Susan Fentin, Skoler, Abbott & Presser P.C.

I hate to break it to you, employers, but in employment-related disputes, the world is not likely to view you as a sympathetic figure. Instead, it is far more likely that you will be viewed as the Big Bad Employer and the individual who has brought a charge of discrimination against you will be seen as the Poor Innocent Employee. After all, she has lost her job, lost her health insurance, perhaps will not be able to make her car payments or feed her small children, all because you treated her unfairly based on her protected class or protected status.

Employment cases always boil down to a he said/she said decision, and juries who are wrestling with these cases have to decide whom to believe. When the choice is between the Big Bad Employer or the Poor Innocent Employee, sometimes it’s hard to believe the employer’s side of the story!

Strong documentation can keep a lawsuit at bayThat’s where documentation comes in. Frankly, solid documentation can help keep a case from being filed in the first place, because employees who are considering retaining counsel to sue their employer will likely be asked to bring a copy of their personnel file to the first meeting with their attorney.

You may know that attorneys who represent plaintiffs in this type of litigation take these cases on a contingent fee basis. That means that they only get paid if the employee’s case is successful, as would be the case if the attorney was representing the victim of an automobile accident.

There’s a good reason why the ads for those attorneys say “The first consultation is free!” That’s because if they look at the file, and it doesn’t seem to them that they will win, they don’t want to waste their time. So if the documentation is solid in the employee’s personnel file, and the attorney bothers to review the file before filing suit, the case may never be filed.

But some attorneys will not check the personnel file, and some will take any case that walks in the door. Although very few employment cases actually go to trial, for the few that go to a jury, documentation can make the difference between a jury verdict that awards hundreds of thousands of dollars to the Poor Innocent Employee and a defense verdict.

Documentation levels the playing field. If the documentation shows that you and your supervisors are being fair, consistent, and making decisions based on legitimate, business-based reasons, you look a little less like the Big Bad Employer, and the employee looks a little less innocent.

Good documentation is clear, understandable, well-written, brief and to the point. It sets out the facts, the effect that the employee’s conduct had on your company, the rules that may have been violated, the consequences for the violation, and future consequences if the behavior continues. It’s signed and dated by the supervisor involved in the decision, and there’s a space for the employee to provide a comment on the discipline imposed.

Documentation that is admitted as evidence at trial goes into the jury room during jury deliberations. That means the jury gets the chance to look at it carefully and decide whether the employer’s reasons for its decision were valid or whether they were a pretext for illegal discrimination. So be sure that your disciplinary documentation supports your decision and that it shows that you and your supervisory team are fair and professional.

Documentation that shows that you are being fair, consistent, and have business-based reasons for your decisions is your best friend when you are asking a jury to rule in your favor.