This short article entitled “Five errors that make defending an employment lawsuit harder” by Anthony Zaller brings home the critical need for management training on the importance of understanding the “why” something is needed to be done and the “consequences” if it isn’t. Documentation and more importantly the right documentation is the first line of defense for an organization.
In my 30+ years of managing and running human resource departments time and time again I have seen how issues that should not have ever reached the level of a potential or actual lawsuit start down the litigation trail. Many times the culprit is the lack of adequate documentation as the article brings out.
One example of having appropriate documents for me occurred several years back during a rather ugly case heading down the potential wage and hour litigation trail. The plaintiffs were very aggressive in their allegations that certain employees had not been properly informed concerning their requirement to take their breaks and lunches.
During deposition, several long term employees (the reason I say long term is because those employees had received revised handbooks in the last couple of years) had signed “sign in” sheets showing they had attended training for each of the revised handbooks by HR and their Managers.
In addition, each time they had received a revised handbook, they also signed a separate sheet showing their acknowledgement for the individual handbook.
Bottom line are two critical pieces of paper proved very effective for our outside attorney in her rebuttal with those employees and provided a more substantial defense in showing there was knowledge on their part which allowed a more viable defense for the organization.
Unfortunately, it appears if you don’t have the right documentation and cannot present it, you don’t have documentation.
In litigation, the following five issues make defending an employment lawsuit much more difficult.
1. No documentation.
No matter what type of employment litigation is at issue – wage and hour claims, leave issues, or harassment claims – the amount of documentation an employer has dramatically increases the odds of prevailing in litigation. I would even go as far as to say there is a relationship in place here (similar to Moore’s law in the computing industry) that the likelihood of avoiding a devastating judgment is proportionate to the amount of documentation the employer has regarding the particular employee or group of employees involved in the litigation.
What should employers document? Conversations with employees, reviews, days absent and the reason for the absence, performance issues (both good and bad – see below), etc…. With email and the ability to scan documents or take pictures of documents on a phone, there is almost no excuse not to have everything documented. The only issue preventing employers from documenting issues is not stressing the need to do document, and the press of business.
2. Inadequate time records.
Employers have the burden to record and maintain accurate time records under California law. If the employer knows employees are not properly recording their time, the employer needs to enforce a policy to have employees accurately record their time, even if it requires disciplinary action. Also, how can time records be “inadequate”?
- The records that do not record the employee’s actual time working. For example, the employee records their start and stop time and the same time every day even though the employer knows it changes.
- Not keeping time records long enough. The statute of limitations can reach back four year in wage and hour class actions, and these records will be the primary issues in most cases.
- Not recording all required information. For example, employers are required to record employee’s meal periods under the IWC Wage Orders (see section 7 – Records).
- Not keeping the time records in a manner that is usable. Maintaining records in a form that makes reviewing the records almost impossible is almost equivalent to not maintaining them in the first place. Some thought should be put into how an employer is keeping old time record information and how that data could efficiently be reviewed in the future if needed.
3. No institutional knowledge of policies and changes to policies.
Is there one person with full knowledge of the employment policies implemented by the company? Institutional knowledge about the various policies put into place by the company, when they were implemented and why they were implemented is critical knowledge. Also, this information should not reside with just one person in case that person leaves the company.
4. Not communicating goals and performance expectations to employees routinely.
This is pretty basic, but it helps to be reminded about conducting employee reviews routinely and accurately. The reviews will likely be the primary focus in a wrongful termination, discrimination or relation claim, and therefore the reviews should be accurate. It is hard to counsel employees on performance issues, but it is critical that these issues are addressed with employees in writing.
5. No written policies.
Sometimes employers operate with unwritten policies. It is important to have the policies clearly spelled out in an employee handbook or in some other manner. It is critical to have the policies in writing to prevent an employee from claiming that he or she is being arbitrarily singled out for discipline.