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Employee documentation can be HR’s secret weapon. It can be used as part of a defense strategy should you ever be faced with a discrimination or retaliation lawsuit, for example. Any labor and employment attorney will tell you that one of the keys to being able to defend—or even prevent—litigation rests in sound HR documentation practices.
What is the purpose for employee documentation? What are the benefits to having good documentation, regardless of the lawsuit implications? "One of the reasons [to have good employee documentation], just from a human resources/performance management perspective, is that you’re notifying the employee of their performance issues." Kristine E. Kwong explained during a recent CER webinar. This eliminates the argument that the employee didn’t know that their performance was not up to standard.
On the other hand, employee documentation can provide notice to employees of good performance, which serves as a morale booster. This can help foster good working relationships.
There are also legal reasons why employee documentation is important. The reality is: employment claims are increasing. When you go into court, the history of an employee is center stage; without documentation you have to rely on witness testimony, which is unreliable at best. In a litigation situation, it’s all about proving what happened during the employment relationship. Documentation establishes this history with less room for questions.
Kwong confirmed: "Juries don’t necessarily believe witnesses, but they will believe the documentation because it was created contemporaneously with the events, so it has more credibility in the jury’s eyes than it does with witness testimony (in which the attorneys have had a chance to prepare those witnesses)."
What this all comes down to is to understand how proper employee documentation can help you to appropriately manage a workforce. Appropriately managing a workforce includes making employment decisions such as terminations, discipline, promotions, demotions, and suspensions. Each of these decisions represents a situation that must be managed without giving the employee(s) any reason to think that the decision/action violates federal employment laws.
Employee documentation helps you explain things to employees and helps you have records of the decisions made and the reasons behind them. In short, good employee documentation helps the organization achieve its employment objectives while minimizing litigation risk at the same time.
The above information is excerpted from the CER webinar "HR Documentation in California: How to Avoid Costly Mistakes with Effective Drafting Strategies" with expert Kristine E. Kwong. To register for a future webinar, visit CER webinars.
Kristine E. Kwong, Esq. is a partner in the Los Angeles office of law firm Musick, Peeler & Garrett, LLP. (www.mpglaw.com) Her practice includes the drafting and updating of handbooks, policy manuals, codes of conduct, and severance packages, and she regularly produces and presents training programs for employers on current issues of employment law.
I think documentation is also important when it comes to "herding the cats"--i.e., managers and supervisors. Requiring them to document drives home how important many of their actions are as far preventing or causing litigation and can help prompt them to think before acting.