Richard J. Morgan, Editor
McNair Law Firm, P.A.

Vol. 16, No. 1
October 2007

WORKPLACE ISSUES

Reflections on a theme: documentation and recordkeeping

Susan L. Maupin

As a follow-up to our July 2007 article on the practical aspects of how employers should document employment matters (see "Avoid liability through sound recordkeeping," p. 7), it seemed appropriate to revisit the subject to address smaller employers that may not be covered by Title VII of the Civil Rights Act of 1964 or the South Carolina Human Affairs Law and that question the necessity of preparing and maintaining documentation they may not be "legally" bound to maintain. This article will address some of those issues and explain some of the reasons documentation and recordkeeping are important for any size employer.

Why documentation is key

Without question, employers of all sizes lose more employment-related lawsuits because of poor documentation practices than for any other reason. The workplace has become significantly more complicated as legal protections for employees have expanded, the employees have become more savvy, and more of them have begun to challenge employment-related decisions. You must always keep in mind that although your employment decisions might be made with the best intentions and the best interests of the individuals involved, the affected employees may view them negatively.

Unfortunately, small employers can't take comfort in believing that because they don't employ the requisite number of employees to be covered by a particular employment law, they're free from liability for poorly handled employment matters. On the contrary, with the evolution of the judicially created exceptions to at-will employment, South Carolina courts have made clear their willingness to err on the employee's side. Thus, whether you're large or small, when you face court challenges to your employment decisions, documentation is more often than not the key to a successful defense. To best protect themselves, small employers would be well served to consider some simple guidelines in establishing consistent documentation and recordkeeping practices.

Recordkeeping guidelines

Commitment of decisionmakers. From the president to the CEO to HR to the front-line supervisor, all decisionmakers and supervisors must be committed to and follow through on the implementation of sound documentation and recordkeeping procedures. Although time-consuming, in reality, taking the extra time will ultimately benefit the company's bottom line. When an employer successfully defends a workers' compensation claim or a discrimination charge because proper documentation supports its business-based decision, the importance of those sound practices becomes very clear.

Forms that make sense. Whether you're revising old company forms or creating new ones, it's important to consider what objective you're trying to achieve and/or what purpose the form serves. The forms should collect information relating to the decision at issue. They should be easy to read, concise, and user-friendly for the decisionmakers or supervisors who use them. They also should be understandable to the employee to whom they're provided.

Rules and policies. Although small workplace environments tend to be less formal, employers are still justified in expecting their employees to meet certain basic standards. Without effective communication of those expectations, employees are left confused and employers are left frustrated. Arguably, the most clear and effective method of communicating those expectations is to have written guidelines, performance standards, or policies. Not only does that get the word out to the employees, but it also provides you with written verification that they were made aware of what's expected of them. Ideally, any written guideline would have a signature block for employees to acknowledge receipt and understanding of the form's contents. Having written standards also will help ensure that supervisors apply them consistently and may help stave off claims that an employee was treated disparately.

Supervisor training. To ensure rules and procedures are clearly communicated to employees, supervisors should have a complete understanding of those guidelines and, when appropriate, should adhere to them. That not only helps protect the company but also benefits the workplace environment because employees will be more apt to "buy in" to a guideline if their supervisors have also "bought in." In smaller work environments, credibility of the company is often more critical than in larger environments because there are fewer employees and likely closer professional relationships. Making sure every employee is on the same page with respect to a particular guideline helps ensure it will be followed. For those reasons, training supervisors on the importance of documentation and the reasons underlying it is key.

Bottom line

As these guidelines demonstrate, in nearly every size employment environment, sound documentation practices are a "best practice." One of the biggest benefits includes protection from liability. Employers that don't document usually find themselves in situations in which the employee says one thing and the supervisor says another. In the context of a lawsuit, that typically means a jury will decide the employer's fate.

On a larger scale, the benefits also include a workplace in which employees feel secure because they know what's expected, that similar problems usually will be dealt with similarly, and that the company as a whole adheres to the same guidelines. Ultimately, that will help make for a healthier work environment, happier employees, and greater productivity and profits.

Copyright 2007 M. Lee Smith Publishers LLC

SOUTH CAROLINA EMPLOYMENT LAW LETTER is not intended to provide legal advice, which can be given only after consideration of the facts of a specific situation.