While Judge Wapner of “The People's Court” on TV never actually said the phrase, "Get it in writing,” host Doug Llewelyn certainly hammered that point home on a regular basis. This idea was a primary tenet of the show and it certainly lends itself to the workplace and documenting employee performance.
Deficient documentation of employee performance is one of the most common issues that employers face in litigation claims brought by former employees. Employers will argue that they talked to the employee repeatedly about an issue, but if it isn’t memorialized in writing, it can be as if that conversation never took place. The problem is often an employer is overworked and overwhelmed. The employer sees documenting problems in the workplace as overly burdensome, or bureaucratic or off-putting to employees, so they don’t do it. Days, weeks or months go by, the employee behavior doesn’t get any better, and the employer finally decides to act.
When they do terminate the problem employee, the employee claims that he was fired not for the reasons that have been discussed repeatedly before, but for some discriminatory or retaliatory reason. If the employee finds an aggressive employment attorney, the employer can find themselves on the wrong side of a lawsuit quickly.
Yes, New York is an “at-will” employment state. If there’s no agreement restricting termination, an employer generally has the right to discharge an employee at any time for any reason—even for no reason—as long as it’s not an act of illegal retaliation or discrimination. In light of this, many employers depend on this concept to shield them from liability.
Unfortuantely, in reality, the scope of “at-will” employment can be limited. If an employer has little or no documentation, and, instead, depends on the fact that employment is at-will with no need to state a reason for the firing, a terminated talented employment counsel may convince a jury that the employee’s firing was illegal. He or she may claim the termination was based on illegal discrimination, such as age, arrest or conviction record, citizenship or immigration status, gender identity or expression, or retaliation, just to name a few. New York City, in particular, has Human Rights Laws which favor employees in such disputes.
“At-will” employment means just what it says, but failing to properly document employee performance is a serious and unnecessary risk to take.
With this in mind, here are some best practices for New York employers:
Draft employee documentation contemporaneously. An untimely, contradictory, or an after the fact recounting of the events may be as detrimental to a case as no documentation whatsoever. Instead, take notes of your conversation with the employee and save to their personnel file. Even better, send a follow up email to the employee confirming the conversation and next steps. Sometimes it’s even important to draft a memo about next steps and have the employee sign and date it.
Conduct a solid investigation and document it. An employer builds a stronger defense against a former employee if they thoroughly and accurately document an investigation into any incident, like theft, discrimination, or harassment. Provide detailed facts to demonstrate that an investigation was conducted that justifies the employee’s termination. Of course, if you are faced with such a situation, legal counsel is always a smart choice to help you in the investigation, documentation and response.
Keep accurate employee records. This will show the company is in compliance with New York and federal labor law.
Draft the factual history of an employee’s relationship with a company. This should detail events as they happened without editorialization, which gives a clear picture of an employee’s performance. Make sure this includes positives, along with negatives—any awards, customer compliments, and stellar performance reviews, throughout their employment, as well as performance issues, customer or co-worker complaints, and poor attendance. You can set up an email folder where it is easy to put emails about the employee’s performance for future referral.
Document all performance reviews. This feedback and constructive criticism is objective evidence for employment decisions. Performance reviews should take place annually, or more frequently upon significant events.
Record employee communications and incidents promptly. Make certain that these are factual and detailed without commentary or judgment.
Use a secure and organized record system. Education all supervisors on proper documentation and company policies and procedures, as well as legal requirements for your personnel filing system.
Maintain workplace policies. Keep the employee handbook and other employment policies and procedures up to date; clearly communicate any changes or new provisions to all staff. Every employer should have an employee handbook that sets forth expectations with respect to behavior in the workplace.
Takeaway
The importance of documenting performance issues as they happen can’t be overstated. Good employee performance documentation can give an employer crucial leverage in settlement negotiations or at trial in a discrimination or wage and hour lawsuit.
At LOVE LAW FIRM, we work with NYS small business employers who are striving to make their businesses the best places to work! We can help you draft policies and procedures, employee handbooks, and other items that can help implement the culture you desire and to protect your company from the risk of litigation. Contact us to learn more about what we can do for your business!
If you liked this article, check these out as well:
5 Tips for Corporate Recordkeeping for Small Businesses
6 Tips for When You're Afraid to Fire an Employee
Francine E. Love is the Founder & Managing Attorney at LOVE LAW FIRM PLLC which dedicates its practice to serving entrepreneurs, start-ups and small businesses. The opinions expressed are those of the author. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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