Larry J. Rector
Steptoe & Johnson PLLC

Vol. 13, No. 12
June 2008

TERMINATION

Help me help you: documenting discipline

In any discharge case, incomplete documentation can be a detriment to your attorney's ability to represent you and defend the claim. Proper documentation gives your attorney the opportunity to determine what happened, allows your supervisors and other witnesses to refresh their memory of the events that led to the discipline, and allows your attorney to present documents to the jury showing why you made the decision you did. This article will address the importance and benefits of good documentation.

Importance of proper documentation

In discharge cases, you must be prepared to articulate the reason you disciplined and discharged the employee. Having proper and complete documentation can help you do that. Moreover, documentation can be an effective tool in presenting evidence to the jury that shows why you disciplined or discharged the employee. Whether the documentation is a prior written warning or a letter setting forth the reasons for discharge, it will assist your attorney in explaining to the jury why you made the decision you did.

Documentation is also important because it helps supervisors and witnesses refresh their memory of the events that led to the discipline. Employees generally have two years to file a wrongful discharge suit. After the suit is filed, it may be another year to a year and a half before the case goes to trial. Therefore, you may need witnesses to testify about events that occurred almost three years before the trial. If you have good documentation regarding the discipline, the witnesses can use it to recall what happened.

For example, suppose you have an employee who makes allegations of sexual harassment. Once the allegations are made, you have a duty to conduct an investigation. From the investigation, you should generate a summary of the various interviews of those involved and a report regarding the results of the investigation. Therefore, if any discipline is imposed on the alleged harasser, you will have the necessary documentation to support why you gave the discipline. If the harasser later challenges the discipline or discharge, supervisors can use the documentation to recall and explain why discipline was imposed. Similarly, if the employee who made the complaint later files a lawsuit for sexual harassment, you will have the necessary documentation to show what happened and how you addressed the allegations.

Documentation is also important when you're trying to show that progressive discipline was imposed. If you have an employee who was consistently a poor performer or had minor disciplinary issues that you considered before deciding to fire him for a major disciplinary issue, proper documentation can be used to show that he was given several chances to improve before the discharge was imposed. In addition, proper documentation can show that you were serious about preventing poor conduct.

Moreover, it always makes the attorney's job more difficult when there is a problem employee who had a number of conduct or performance issues but no instances were ever documented. While you can rely on witness testimony to explain the prior issues to the jury, the more effective way to present the evidence is through proper documentation. If you claim you considered the earlier conduct in discharging the employee, the jury may question the conduct's seriousness if you never took the time to document it. By documenting the problem, you can also show that you talked to the employee about the issue and gave him a chance to improve his performance or conduct. While a lack of documentation won't preclude you from introducing evidence of prior disciplinary issues, proper documentation will allow your attorney to present a better case and make better arguments to support your decision.

Don't forget about retaliation

Documentation can also be important in retaliation cases. As you may have heard, retaliation claims are on the rise. One of the more crucial pieces of evidence in a retaliation case is the issue of timing in other words, how close in time the discipline or discharge occurred in relation to any complaints the employee made.

If you have taken the proper steps to document performance problems before the employee complained, you will be in a better position to defend against the retaliation claim. But if you haven't properly documented prior work performance or conduct issues, any discipline that follows closely after a complaint will appear to be motivated by the complaint rather than work issues. Therefore, even if you have a problem employee who has performed poorly before any complaints, poor documentation will place you in a difficult position if he continues to perform poorly after making a complaint.

Finally, with any documentation for discipline or a discharge, you must keep in the forefront of your mind the possibility that it could be used as an exhibit at trial and placed in front of a jury. Therefore, regardless of the seriousness of the issue, documentation must be drafted as if it's going to be put up on a big screen for the jury to see and for an opposing attorney to criticize. Similarly, with any documentation used to set forth why an employee was discharged, it's critical that the document contains all the reasons for the discharge. If you try to use a reason that isn't stated in the discharge letter, the jury will seriously question your explanation for why you discharged the employee.

Bottom line

Proper documentation is critical to defending against discharge cases. Taking steps now to document any imposed discipline will help your attorney defend against any later claims.

Copyright 2008 M. Lee Smith Publishers LLC

WEST VIRGINIA EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. The State Bar of West Virginia does not certify specialists in the law, and we do not claim certification in any listed area. For further information about the content of any article in this newsletter, please contact any of the editors.