Contributed by Heather Bailey
As employers, we cannot stop employees from suing, but we can make sure we are prepared to have the best defense possible. This preparation begins way before an employee even thinks about suing and it starts with properly trained management. Management should be trained on the following discipline documentation practices:
- Document Problems As They Occur: This should be done so the incident is fresh in your mind. Documenting should include the employee’s performance issues, attitude, and other work related problems;
- Do Not Create Smoking Gun Documents: Do not mention anything in the document about an employee’s protected status (i.e., age, race, national origin, religion, military/veteran status, disability, gender or sexual orientation);
- Don’t Vent, Be Nasty or Sarcastic: Describe employee-related problems and events objectively. Remember to cool down before you discipline an employee so that you can be more objective and fair in your evaluation of the events that just occurred;
- Don’t Guess Or Speculate About Facts You Can’t State For Certain: For example, don’t guess about the number of absences. You need to be able to back up facts under oath. Be concise and don’t go off on tangents on issues insignificant to the employee’s performance;
- Give The Employee A Copy Of The Document: Also obtain his/her signature that they have received the document and/or counseling. If the employee refuses to sign, then indicate so on the document;
- Never Back Date Documents; as this will only lead to problems down the line to discredit your testimony and events of the discipline; and
- Know When To Ask For Help: If discipline is not routine, or you are not sure what to do, ask Human Resources for help. For example, if an employee has filed a discrimination lawsuit, much care is needed in correctly documenting any disciplinary problems that occur after this date to ensure you do not create a potential retaliation claim.
With consistent and properly documented discipline, an employer has the best chance of defending its legitimate employment practices.