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Employee Documentation: Your Litigation Safety Net

Updated: Feb 2, 2022

If you read our article on At-Will Employment you'd have a good idea on the importance of employee documentation.

Unfortunately we see WAY too many companies neglect this life saving practice. When it comes to the courts, the mantra will be "if it isn't written down, it didn't happen."

Documentation is absolutely essential to defend yourself against all kinds of employment claims.

For example, an employer will ask us: "Can I fire this employee?"

Our response is always "sure, you can --- but do you have proper documentation of their prior poor performance or bad behavior?"

The answer is almost always "no."

This makes letting a toxic employee go very difficult.

So if you don't have a solid and well followed documentation process, here are some employee documentation best practices to adopt immediately.

1. If It Ain't Written, It Didn't Happen

Naturally the number one rule of documentation is to actually do the documenting.

If you don't have an HR tool then at a minimum go the old fashioned route by creating a file for each employee where you can store behavior and performance reports/reviews.

You can also email the employee with the write up/review so it's documented there.

Regardless, if you don't write it down and save it then you can't prove it.

2. Make Sure Documentation Is Timely

Notwithstanding if the notes are positive or negative, after a performance or behavior review document the notes immediately.

You don't want to wait until the next review or even just several weeks down the road.

If something is important or bad enough to want for future demotion or termination then get it down and saved today.

If you're trying to build your documentation off of memory of a conversation that happened several weeks or months ago then you open up the window for employee contradiction and create a he said, she said, battle. And you will lose that battle.

3. Be Sure The Employee Knows About It

Negative reviews should not be a surprise to employees.

If there's room for improvement the employee should know immediately.

Not only is this good leadership but should an HR issue come up in the future you'll want the protection of having proof the employee was informed of the infraction, and that it was documented.

Again, the documentation should be stored somewhere and preferably in a place with easy access for HR personnel.

Don't pay the price (usually very high and costly) for the lack of documentation. The Emperor - i.e. the government - will always side with the employee.

If it isn't written down, saved, and accessible, it didn't happen!

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