Documenting Your Way Out Of Trouble

Calvin House
April 21, 2005 — 2,464 views  
Become a Bronze Member for monthly eNewsletter, articles, and white papers.
Sometimes you may get the feeling that judges and legislators have complete control over your employment relationship with your employees. While there are laws that regulate some aspects of employment anti-discrimination statutes, workers compensation acts, wage and hour rules, for example,the law also recognizes a simple yet powerful tool for controlling the terms of the employment relationship documentation. Here is what documentation can do for you:
Get Off On The Right Foot. A job offer is an offer to enter into an employment relationship. You control the terms of the relationship with the documents that accompany the offer. If the only document you have is a classified ad seeking a clerk for $10 an hour, that is the only part of the relationship that you control. If you confirm the offer in an employment letter stating that the applicant will work as a file clerk for $10 an hour on the 12 midnight to 8:00 a.m. shift, you have taken further control. If you enclose a job description with essential functions and physical tasks, you have still more control. Maximize your control by having each new employee acknowledge receipt of the employee handbook before starting work.
Administer Medical Leaves Worry Free. Worried about whether an employee is entitled to family medical or disability leave? Use documentation to make the right decision. Send the job description (the one you wrote before you hired the employee) and the employee to a doctor, and have the doctor report back to you (on a form that you provide) whether the employee can perform the essential functions of the job. If the employee later challenges your decision, you have the documentation and the professional opinion to back you up.
Make Discharge Decisions That Stand Up In Court. When you fire an employee, you must have a good reason. Otherwise, you risk liability for discrimination, retaliation or wrongful termination. To stand up in court, the reason must be documented. Proper documentation starts at the hiring stage with an accurate job description. After the employee starts work, the employer must establish a set of written performance goals in consultation with the employee. Monitor the performance goals with annual written performance evaluations. Document misconduct and performance problems in the employee's personnel file. Now, when the time comes to let an employee go, you will have the paper trail necessary to defend yourself in court if there is a lawsuit.
Documentation is a simple yet powerful tool for taking control of the employment relationship.

Calvin House

Gutierrez, Preciado & House, LLP