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Savvy Employers Erect a Paper Defense for Legal Security

Readers of this newsletter are well aware of the potential dangers of employment litigation stemming from a bewildering array of constantly changing laws and regulations.

Unfortunately, this sort of litigation can easily prove to be complicated, time consuming and expensive. One way to reduce the time and expense involved – not to mention increasingly the prospect that you will prevail – is having all of your paperwork in order.

“Basic documents created by an employer lie at the core of an employment dispute,” notes Mauro Ramirez, an attorney with the law firm of Fisher & Phillips LLP. “In litigation, these documents can make the difference between success and failure.”

Five key documents arise most frequently, especially in employment cases: job description; handbook; performance evaluations; disciplinary documents; and responses to administrative charges. “Any diligent plaintiff’s attorney will request these documents,” Ramirez stresses.

Of the five documents, job descriptions are often the most overlooked, he says. As time passes it can be difficult to keep up with an employee’s core duties and functions.

Have a solid Job Description for your Employees

A fundamental question in litigation is going to be, “What did this person do?” Although a supervisor can provide this information through testimony at a later time, it is always best to have a document that clearly sets out both the employee’s job duties and expectations, Ramirez says.

This information can be very important. For claims regarding failing to hire or promote an employee, the duties that the employer felt the plaintiff could not successfully accomplish are central, as they are in cases involving disabilities.

In unlawful discrimination or retaliation claims where an employee was terminated because of failure to properly execute job duties, you need have documentation to establish that the employee expected to fulfill the duties in question.

If you fire a salesperson for failing to achieve consistently positive customer satisfaction scores, you can use the job description to establish you expected the employee to achieve such scores, and the employee understood that expectation.

Use Employee Handbooks to clearly outline Policy

Handbooks serve a critical role because they set out basic policies for employees. Unfortunately, they also can negatively impact your case.

Handbooks establish that the employer has policies prohibiting the conduct the employee complains about, such as policies on equal employment opportunities, medical leave and requesting accommodations.

“Clear policies regarding reporting potential harassment or discrimination underpin important legal defenses – especially when employees fail to use reporting avenues,” Ramirez observes. However, in many cases handbooks should be edited for policies or procedures that can be exploited by a plaintiff’s attorney.

A handbook that fails to provide succinct and relevant policies not only gives employees poor guidance; it can undermine your case in a lawsuit. This happens when policies are inconsistently or improperly applied, often regarding attendance, tardiness or other expectations.

Of course, policies should be updated regularly. “Even if there is no discriminatory motive, a manager’s reliance on an outdated or unlawful policy will undoubtedly assist an employee in mounting a challenging case,” Ramirez warns.

Document Employee Evaluations and Discipline

Performance evaluations are vital in cases involving a termination for poor performance. Managers’ reluctance to give honest evaluations results in documents stating that most employees “meet” or “exceed” expectations. If the manager has to explain this evaluation is wrong, a judge or jury may question whether the manager is being truthful.

Disciplinary documents or termination sheets are key evidence detailing the employer’s reasons for taking the actions that the employee claims were done for discriminatory or retaliatory motives.

A clear explanation of the reason for the termination that is articulated at the time the event occurred can help anchor your credibility.

Managers too often create these documents without potential litigation in mind. This can result in vague shorthand comments such as “policy violation” or “not following directions.”

A vague comment or an error in citing a reason may not prove fatal to a defense, but they create scenarios opposing counsel can exploit to question managers’ credibility or force them to admit they were careless.

Responses to administrative charges, such as statements to the EEOC, differ from the other documents because they are created after the underlying facts have taken place. These responses usually incorporate the other common documents and underpin the employer’s defense.

If disciplinary decision is not articulated accurately, it can seem suspicious later. Make your responses to administrative charges concise and simple, addressing the allegations directly and accurately.

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