Why Los Angeles Employers Should Keep a Diary.
So diary, journal, notes on a post-it, whatever you want to call it, employers should be documenting their experience with employees more often than they are. The one thing I press upon my small business clients- document. Having good documentation of your employee management makes the difference between a weak and a poor defense. Most cases hinge on if an employer addressed an employee grievance and without documentation it often appears the employer did nothing, even though that is not likely the case.
I have created a free fillable PDF forms to help employers and managers document. Read more on what employers should document.
Why should employers document things in writing?
A Written Record of Events
Writings are a snapshot of feelings and thoughts near the time the events arise. Employee lawsuits often tell a tale of grievances that have occurred over time and are not necessarily recent. It is hard for a busy business owner or manager to remember their thought process, rational or feelings towards a situation months or even years after it happened. An employer's story is stronger when at the time something happened the employer documented their process, what they did, how they did it, when they did it, and the reasons for their decision.
Documenting interactions with employees don’t always need to be shared with employees. It can be a form of business management journal/diary. Some documentation you want to keep for your records, such as notes on an employee’s workplace behavior after you have already disciplined them or before you are about to discipline them. It helps to write out your thought process before you take action. These notes while they don’t need to be given to an employee, may serve useful later on. The devil is in the details, and the details are in that note you made.
One way to protect your thought process is to talk to an attorney. Attorney-client communications are privileged. Sometimes employers can’t see the forest for the trees when they have so many things going on. Attorneys can ascertain issues and potential liability from an outside perspective and litigation standpoint.
Workplace Policy Enforcement
Another rule of thumb I harp on with my clients, follow your own handbook. If you don’t know what your handbook says then it is a good time to pick it up, review it and have an attorney also review it. Handbooks get outdated fast. Sometimes the rules a template handbook includes don’t actually work with your operations or are even legal anymore.
One of the biggest issues I face in defending lawsuits is when an employer has a handbook and then never followed its rules or don’t apply the rules equally to all. Employment in California is “At-Will” unless an employer terminates an employee for an illegal purpose (outside the scope of this blog) or if the employer has rules specific to termination. A common rule I see in handbooks is “termination for cause.” An employer will argue the employment is “At-Will” but then have a handbook that says an employee can only be terminated for cause. If the employer does not sufficiently document all the “causes” that lead to the termination it makes for a poor defense in a lawsuit.
If an employer has reasons for terminating an employee then the employer needs to document what the employee is doing wrong, put the employee on notice with a write-up and then terminate according to the employer’s own rules, if any. It is advisable to consult with an attorney prior to terminating an employee to potentially avoid liability for an alleged wrongful termination case.
What should employers document?
Employer and managers notice problematic behavior quickly but fail to take corrective action. If a manager sees something, they should say something. If an employee acts inappropriate a manager should verbally say something. Then document the interaction and save the note to the employee’s file. If it is ongoing proceed with a formal write-up. Having notes about the verbal warning adds validity to actual write ups.
Often times employees do need to get written up for their conduct. Depending on your workplace polices, tardiness, poor work product, harassing conduct, absenteeism, workplace safety violations and so on can all be write ups. A formal write up gives seriousness to an employer’s rules. It takes the guess work out of whether an employee was previously warned about their conduct by making it known that the employee had documented issues.
Interactive and Investigation Process
Documenting the discussions between employer and employee, research the employer has done about a situation and then memorializing a decision is a good way to defend against a lawsuit when an employee later comes back and says the employer didn’t try.
Workplace harassment must always be addressed. Every grievance brought up by an employee, whether verbally or in writing, casual or concerned, needs to be investigated and taken very seriously. Employees often quit because they feel they had no choice as a result of employer’s failure to address a problem and sue later for constructive termination. Make sure to document the process of reviewing the grievance, gathering evidence and testimony from witnesses and rendering a decision.
Tracking Employee Leave
Paid and unpaid leave is a growing area of employment litigation. Employers are often getting sued for not providing enough leave. Employers should document each time an employee requests leave, the reason for the leave, available paid leave to be used and what the employer’s reasons to grant or deny the request. California and Los Angeles have various leaves that expand depending on location and reason. Employers are advised to contact an attorney if they are unsure how much paid and unpaid leave they are required to give.
As part of documenting you should include dates, times, people who were present, things that were said and by who, feeling of the room, thoughts in your head. Some details will make it into a formal writing or note to file, but others can be kept and later referenced. Human beings are intuitive creatures. We observe and sense our environments. An employer knows when something does not feel right whether it is an employee, group of employees, or situation. So take note of it. These notes also help an employer come up with ways to improve the workplace which can ultimately boost employee morale and productivity.
How should employers organize and store documentation?
Organization is the key to business. Employee files should be organized and locked either in a filing cabinet or on a computer. Only employers and managers should have access. Outside the scope of this blog, but when an employee requests their file not everything in their file needs to be turned over. If you ever get a request from an employee to see their personnel file you should talk to an attorney. That is usually a tell-tale sign something is to come.
Employee files can be organized in a number of ways. Some of the categories are:
Administrative- W4s, direct deposit information, health insurance information, benefits information, emergency contact, resume, application and any agreements or acknowledgements signed by the employee.
Time Records- Sick leave requests, meal break waivers, time records, and paystubs.
Discipline- Verbal warnings, write-ups, complaints filed against employee, investigations involving complaints about employee and written termination notice.
Employee Specific- Probationary performance review, performance reviews, complaints filed by employee, investigations of those complaints, any notice of employee’s disability, and interactive process with employee about the disability.
Trainings- Any training employees received, including any trainings an employee did as a result of discipline.
Note of caution- do not turn over time records when an employee requests their personnel file. It is not required and if turned over can give an employee and their attorney a reason to file a lawsuit.
Documenting your employee management is a good way to keep the employer honest with themselves, their business and their employees. Documentation is purposeful. In the long run taking the time to keep track of what is happening with your employees now will save you a lot of grief and potentially money in the future.
I say this a lot and feel no shame, Los Angeles employers should talk to an attorney when they don’t know what to do. Employment law is a large area of litigation. There are many traps that can get employers into costly lawsuits. Consulting with an attorney can help avoid these traps. There is no way to guarantee an employer will not be sued, but there are ways to prevent lawsuits or have strong defenses. If you are a small business or an employer in Los Angeles and don’t know what you should do about a specific employee issue then call or email me. 818-306-0686 | firstname.lastname@example.org
The information in this post is for general information purposes only. Nothing on this post should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.