No matter how well you run your business, you will likely face a time when you need to let an employee go. Keeping accurate employee documentation will protect you in these instances. California is an at will state, which means employers are able to terminate with or without cause. However, there are many situations that make firing an employee illegal and could lead to a wrongful termination claim. For example, you cannot fire an employee based on race or religion, nor can you terminate an employee because they reported harassment. Without documentation of the reasons behind a termination, you could be at risk because the employee could claim you fired them due to one of these factors. If you do have documentation, you can quickly refute and defend against the claim.
Knowing What to Document
Documentation takes time and resources, but legally speaking, it is worthwhile. Knowing what to document will help your organization use your time and resources properly. We recommend documenting the following employee interactions:
- Probationary periods: If you place an employee on probation, document it, including the reason behind the probation.
- Reprimands: Both verbal and written reprimands need employee documentation. This becomes challenging when verbal reprimands are common, but without documentation, the manager cannot make a legal claim that the reprimand occurred.
- Emails: Keep records of internal emails related to employee behavior and HR needs. Again, if the behavior leads to employee termination, you may need these.
- Tardiness: Make a note in your time clock software of regular tardy arrivals if this is grounds for termination.
- Rules and regulations: In addition to direct interactions with employees, keep records of rules and policies the employee agreed to follow. If they fail to do so, this could provide legal grounds for termination.
- Supervisor meetings: Any time a supervisor meets with an employee, whether for negative or positive reasons, document the reason for the meeting, what was discussed, and any other details that are pertinent.
- Performance improvement plans: If an employee is failing to meet expectations for the work required, the employer can use a performance improvement plan to help them get back on track, and this needs to be documented.
What Documentation Should Contain
When keeping these records, make sure they contain the relevant information that would apply in the event of a termination and pushback from the employee. Some details that are helpful include:
- Date and time
- Parties involved
- Employee information, such as name, role, and job title
- Written and verbal communication
- Written and verbal agreements
- Details leading up to the meeting
- Follow-up actions taken
- Signatures from all parties
Create a system that is easily accessible to record this data so your employees and management team can all know what is expected in terms of documentation.
Proper Documentation May Provide Legal Protection for Wrongful Termination Claims
Keeping documentation prior to employee termination is going to provide legal protection for your organization. If the employee claims the termination was for a wrongful reason, and the employer has documentation of repeated late arrivals or failure to complete work in a timely manner, the lawsuit may not hold merit. On the other hand, if the employer does not have such documentation, the employee may have grounds to pursue a wrongful termination case. The time it takes to keep records is helpful in providing this important protection against the costs and frustrations of a lawsuit.
Employee termination creates strong emotions and can lead to lawsuits. Your records could be the difference between a large settlement and a dismissed lawsuit. If you are concerned about the record-keeping you have in place, reach out to Lanak & Hanna to get expert guidance from our law team.
Pursu Agency