The article written below was done at my request! I have known Art Silbergeld for the full 36 years that I have been fighting on behalf of employers. Managers and supervisors are still not doing what needs to be done in terms of documentation! Let’s see what Art has to say.
Document, Discipline or Die
Having defended employers of all sizes across numerous industries in upwards of 400 litigations, I can say unequivocally: an employer’s greatest risk when facing a Superior Court, federal court or administrative complaint is having shoddy documentation – or none at all.
From the get-go, documentation is required. In addition to a job application, California requires that each new employee receive a form under Labor Code 2810.5 detailing wages, payday, workers’ comp, sick pay, and other information, and that the employer update it when any of the information changes. Don’t do it? Wait til a lawyer representing a former employee who is suing finds out.
Have you given an employee a verbal warning lately and forgotten to document it? Yes, every verbal warning should be documented – if it isn’t, you may later hear that it never happened. So what? When a former employee sues, s/he will point to your progressive discipline policy, claim that you jumped directly to termination without any warning. Then you’re into a he-said/she/said dispute which you could easily have avoided, wriggling in your seat while the jury listens.
Have an employee whose performance doesn’t meet your standards, and now the owner or a supervisor wants the employee gone –fired yesterday? Where’s the last performance review? Where is the document the employee got that says shape up, or points out a specific performance and details on how to correct it? Eight months later you’re being deposed and the employee’s lawyer is asking you, “How was he supposed to know the company found his work wasn’t up to snuff?” And you’re squirming in the chair, looking helplessly at me because you can’t answer and because the employee has demanded 3 years’ back pay!
Find yourself before a hearing officer of the EDD defending a bogus claim for unemployment benefits, and you don’t have any document showing that the employee stole several wrenches, or deliberately broke a laptop, or was under the influence at work, or brought a weapon to work on the day he was fired?
In each one of the cases, you never know where some employee issue that happened just yesterday will end up – in court, facing a complaint or a claim for benefits. Don’t have the documents to back up your side of the story? Yes, Jim Potts or your lawyer will do whatever can be done to make the best of it, but it’s your job to help. Picture a gauge where the needle goes from LOSE to WIN.
Every document you create moves the needle to your side, to WIN. Document, document, document, or you’re setting yourself up for failure!
Arthur F. Silbergeld, Partner
Thompson Coburn LLP
Well, does any of the above sound familiar? Come on managers and supervisors get your act together in this area and remember, personal liability is just a heartbeat away.