Mitigating Employer Risk Through Documentation

May 14, 2021

Documentation is one of the easiest ways for an employer to preserve evidence in a case. Ideally, employers should document every action and decision taken concerning incidents, complaints and disciplinary actions in the workplace, no matter how small the issue may seem. An employer’s documentation should build a timeline from when the incident was reported or discovered to the conclusion of the investigation and everything in between. These timelines will help your organization avoid liability connected with terminating and disciplining an employee. It will also help your organization gain creditability in the courtroom and can assist potential witnesses with their recollection of events that may have taken place. You should always date your documents and draft them with enough detail that a third party could review the documentation and understand the situation that took place.

Good investigation documentation can be the difference between an employer winning or losing their case. For example, an employee is terminated for theft and sues the employer claiming that the firing was actually because of discrimination. If the employer has documented the investigation that took place concerning the theft incident, the defense will be stronger. If the employer failed to document the investigation, it would have a hard time proving that the employee’s termination was not for other reasons. A separation notice claiming theft is not enough. An employer must be able to provide the facts to prove that there was an investigation done that justifies the termination. Those facts are generally held within the timelines referenced above.

Additionally, documentation about employees provides the factual history of an employee’s relationship with a company. Documentation should describe events as they occurred without needing the author to describe their thoughts about the events. The ultimate goal of documentation is to create a clear picture of an employee’s performance. It should not focus on the negatives alone. Therefore, it is important that employers also include in their documentation awards, performance reviews, promotional letters and any other information or feedback presented to the employee throughout their employment.

Poor documentation is one of the most common liability problems our firm sees with employers facing litigation claims brought by former employees. Contact your Gislason & Hunter LLP employment law attorney today to discuss whether your company is keeping adequate documentation.

This information is general in nature and should not be construed as tax or legal advice.

Associated Attorneys