Southwest Florida Employment Law Blog : Southwest Florida Employment and Labor Lawyers & Attorneys for Discrimination Lawsuits and Civil Rights Cases in Fort Myers, Bonita Springs & Sanibel FL

In my last blog post, I challenged employers to resolve to improve their workplace documentation practices in 2013. This post is the first in a promised series of practical tips for achieving your resolution.

How many times have you heard the phrase: "If it's not in writing, it didn't happen."? That saying has special meaning in the workplace context. Judges, jurors, arbitrators, EEOC investigators, unemployment referees, employees, and last, but not least, ME as the attorney retained to defend your company, expect employers to keep good records, and to be able to produce them when a question arises about a workplace complaint, incident, or employment decision. 

Documentation comes in many configurations. Employers can document through formal reports, printed forms, memoranda, performance evaluations, disciplinary memos, phone notes, day planners, post-its, and even on the back of cocktail napkins. In future blogs, I will discuss how, when, and where to document or record workplace events, observations, communications, but first things first: WHAT SHOULD BE DOCUMENTED?

Here is a list of the many "documentation worthy" workplace activities.

• Recruiting materials and employment applications. (Necessary to establish compliance with Title VII, ADA, ADEA, OFCCP, Affirmative Action Regulations, and many other laws recognized by their acronyms.)
• New hire information. (Critical to demonstrate terms of employment and compliance with federal and state laws. Includes employment application and references, criminal background check, required certifications and licenses, drug tests results, driver's license checks, I-9s, etc.)
• Payroll.  (Required by law and must be retained under the IRC, EPA, FMLA, FLSA.)
• Performance evaluations. (Essential to ensure clear communication of employer's expectations, support employment decisions, track progress, correct deficiencies and defend lawsuits.)
• Misconduct and discipline. (Important to address employee behavior and violation of workplace rules and standards of conduct, establish patterns of behavior and administer progressive discipline in a fair and consistent manner.)
• Employee incidents, complaints, and investigations. (Necessary to establish a precise accounting of events that are critical to legal disputes and to promote better decision making.)
• Leaves of absence. (Key to calculating, tracking, and coordinating leaves of absence under FMLA, workers' compensation ADA, USERRA, Florida domestic violence leave law, and voluntary employer policies.)
•  Absenteeism and tardiness. (Necessary to track hours of non-exempt employees and to ensure the fair and consistent administration of employer's absenteeism policy.)
• Accommodations. (Convenient to demonstrate employer's participation in the required interactive process of accommodating disability, religious practices, etc.)
• Employee acknowledgments. (Valuable to prove that employee attended training sessions and received policies, write-ups, performance evaluations, and required notifications.)

While this list is not exhaustive, it gives you an idea of the diverse workplace activities that should be documented and why proper documentation is important.

Next post in this workplace documentation practices series: How to document? Carefully.

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My #1 recommended resolution for employer clients in 2013? Improve your workplace documentation practices. Why? Because I like to win cases for clients, and most employment lawsuits are often won or lost based on the presence, quality, and accuracy of an employer's documentation.

Experts tell us that understanding the benefits of your New Year's resolution will help you keep it. So, here are five important reasons why proper documentation will improve your workplace and increase my chance of winning your employment lawsuit:

• Proper documentation demonstrates an employer's compliance with federal, state, and local laws.
• Proper documentation leads to better and more objective decision-making.
• Proper documentation lends credence to an employer's explanation of the legitimate business reasons underlying its employment actions.
• Proper documentation provides evidence that similarly situated employees were treated the same.
• Proper documentation helps witnesses remember key events.

Announcing your New Year's resolution also increases the likelihood you will keep it. For my part, I promise to help you improve your workplace documentation practices in 2013 by providing you with specific tips and strategies in future blog posts. To put it in legal terms: 

WHEREAS, proper workplace documentation is critical to minimizing employment disputes and improving an employer's position in litigation. NOW THEREFORE, BE IT RESOLVED that the aforesaid employer/reader and the undersigned attorney/writer will work together to improve workplace documentation practices in 2013.

I will keep my resolution for 2013. Will you?

Next post: What to document? Almost everything. 

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With the mountains of paperwork in the workplace these days, HR professionals often question what should -- and what should not -- be kept in an employee's personnel file.  Should it be every single document that refers to the employee?  Should it only be the "important" documents like applications and disciplinary records?  Or should it be something in between? 

As we all know, personnel files are very important, particularly in a time where employment litigation is booming.  A well-kept personnel file just might hold the employer's so-called "smoking gun," and perhaps the key to the case. 

A recent HR Hero email cited to a 2007 Montana Employment Law Letter article addressing this topic.  Briefly, employers should include documents like applications, offer letters, and employment agreements.  Performance documentation and handbook/policy acknowledgments should always be included (remember that "smoking gun" I mentioned?).  Among those documents that should not be included?  Anything related to employee health information, including information regarding health insurance.  This information should be kept in a separate, confidential medical file.

Though not comprehensive, the article is a good guide for what employers should keep in a personnel file.  Legal counsel can help address concerns regarding specific documents.  When in doubt, the best practice is to include a document about which you are unsure.  Better safe than sorry!

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