You’ve probably heard this in a legal seminar at some point…..”document, document, document”. Why is this so important? Why do attorneys tear their hair out when they get the call from a business client seeking help after the fact and find that there is no internal documentation of the matter. “We had meetings with the employee…..we just didn’t make a record of it.” What’s the problem?
Documentation of disciplinary actions
This is probably the most important of all HR documentation, with the possible exception of documents required under the ERISA (Employee Retirement Income Security Act) regulations. Without proper documentation building the history of the employee’s behavior and the opportunities provided to the employee to correct the behavior, you will find yourself in a situation where the court or government agency must decide who they believe, you or the employee. And without the documentation to rely on, can you sufficiently recall all of the details of the matter? The employee probably can, but it will be as they saw it.
Courts and agencies such as the EEOC (Equal Employment Opportunity Commission) and OCRC (Ohio Civil Rights Commission) consider cases of alleged wrongful discharge, demotion or other adverse actions taken by an employer with an eye on the fairness of the employer’s actions. Was the employee given warning of potential job loss or further discipline? Were they given a chance to correct their behavior, improve their performance? Have you followed your own policies? Are your actions consistent with similar situations at that workplace? These are critical questions which should be answered in the affirmative in your employment records.
Keep in mind that termination from employment is considered to be the death penalty in the employment context. How would a judge view this in light of the specific behavior that led to the dismissal? How would a jury view it? Your best defense is a strong offense, which starts with proper documentation.
Keep confidential employee information separate from the rest of the HR file
Confidential employee information includes I-9s, medical information, garnishments, drug/alcohol test results, workers compensation claim files, etc. The general rule is that nothing should be in the employee file that should not be used in making employment decisions (e.g. records of an employee’s medical condition/treatment, marital status, personal financial issues, citizenship status, etc.). Keep those documents in a separate, secure (locked) file cabinet that even supervisors/managers do not have access to.
Best Practices in maintaining orderly employee files
You may be old enough to remember the cartoon strip “Shoe”, which was a regular in the sunday paper. One of the characters (who were all birds of one type or another) was Cosmo Fishhawk, a newspaper columnist whose trademark roll-top desk is always overflowing with a very tall stack of papers, extending beyond the edge of the desk. When asked to produce a particular document or file he would “fish” around in the pile on his desk and somehow come up with it on the tip of his wing.
Although entertaining, I do not recommend this method of recordkeeping (in this case if the Shoe fits, get rid of it!). Even though I am not the most organized person on the planet, I do recognize the need to keep orderly files in order to produce documentation when called for as well as to ensure that the documents that should be in the file actually are there. I suggest that a simple checklist is included in each employee file to track the existence of documents that should be there, and a follow-up schedule to retrieve or create them when needed. Also, grouping documents into logical “buckets” within each file, separated by dividers, is a great way for quickly finding what is needed.
These deserve a separate consideration because there are very good reasons to keep a record of former employees, not to mention the legislated (by various employment laws) requirement to retain certain documents well after the employee leaves your employment. Maintaining orderly files of employees no longer with you provides the information needed to determine if that employee should be considered for re-employment in the future, or to defend claims of wrongful termination and/or unemployment compensation eligibility.
How long should you keep these records? Many employment attorneys recommend at least 7 years, due to the statute of limitation in the case of potential lawsuits. Some records must be kept forever, as is the case for workers compensation claim files. As more and more records are being kept electronically, it will be much easier to retain these records for much greater periods of time.
Supervisor “desk files”
I am not a big fan of “desk files” kept by many supervisors (in their desk of course), separate from the official employee file typically maintained by HR (or the office manager in many small organizations). That is because the material in the “desk file” can contradict the official employee file, which could be a problem in the discovery process should there be a lawsuit or charge to defend. Also, notes being kept by the supervisor are typically not reviewed by anyone, and can contain “land mines” for employers seeking to establish that Joe employee was not fired because of their race, religion, gender, etc. Again, I’m not a big fan.