A client called me one day to say he wanted to fire an employee who had a history of shipping wrong orders and talking back to his supervisor.
A recent small incident was the last straw. I asked the client if he thought the employee was likely to sue. His wary response was that is very possible.
“He's taken some time off on a work comp injury, but that's not important and that's not why I want to fire him,” the client said. Then I asked the key question: “Have you documented the employee's mistakes and behavior issues?”
“No,” said the client. “I've been busy and I haven't had the time.”
Now I'm hearing the soft voice of impending disaster. This employee will very likely claim he was fired because he took time off after a work injury, not because of the last straw incident that the employer admits was minor.
One of the simplest ways to prevent lawsuits is to document everything. You interact with your employees every day. Keep notes to protect yourself.
Of course, you can't have a secretary follow you around taking notes on every conversation you have, and please don't secretly record them. But when you talk to an employee about performance, attendance, mistakes and needed improvements, make a few notes. Whether by hand, on a computer or by dictation, it doesn't matter. Just have something in your file, a note, not a book, that you can refer back to if needed.
Do you have to share all of this with the employee? Yes. Section 1198.5 of the Labor Code allows an employee to inspect any personnel record that has to do with the employee's performance or any grievance concerning the employee, with certain listed exceptions.
Do you have to give the employee a copy? No. An employee is entitled to a copy of anything he or she signs, according to Labor Code section 432, but not everything in the personnel record.
But it still may be a good idea to give the employee a copy of a note if it confirms what you discussed. That way you are both clear on what you expect from the employee. If he or she fails to meet your expectations, now you have a paper trail to justify disciplinary action.
Of course, if all you ever do on paper is complain, your employees will hate you. So write a note when they do a good job too. When it's time for the employee's annual review, you'll be surprised how easy it will be to refer to your notes and summarize the prior year.
Nothing can prevent someone from filing a lawsuit, but in most cases, good documentation makes it easier to get rid of a weak case, often before it's filed. Also, be sure to remember the Carlsbad Chamber of Commerce as a resource.
The chamber often can connect a member with valuable information on best practices from other small businesses that are dealing with the same problems.
Feel free to call and ask for help. You can often get information and basic advice without having to pay huge fees.
A recent small incident was the last straw. I asked the client if he thought the employee was likely to sue. His wary response was that is very possible.
“He's taken some time off on a work comp injury, but that's not important and that's not why I want to fire him,” the client said. Then I asked the key question: “Have you documented the employee's mistakes and behavior issues?”
“No,” said the client. “I've been busy and I haven't had the time.”
Now I'm hearing the soft voice of impending disaster. This employee will very likely claim he was fired because he took time off after a work injury, not because of the last straw incident that the employer admits was minor.
One of the simplest ways to prevent lawsuits is to document everything. You interact with your employees every day. Keep notes to protect yourself.
Of course, you can't have a secretary follow you around taking notes on every conversation you have, and please don't secretly record them. But when you talk to an employee about performance, attendance, mistakes and needed improvements, make a few notes. Whether by hand, on a computer or by dictation, it doesn't matter. Just have something in your file, a note, not a book, that you can refer back to if needed.
Do you have to share all of this with the employee? Yes. Section 1198.5 of the Labor Code allows an employee to inspect any personnel record that has to do with the employee's performance or any grievance concerning the employee, with certain listed exceptions.
Do you have to give the employee a copy? No. An employee is entitled to a copy of anything he or she signs, according to Labor Code section 432, but not everything in the personnel record.
But it still may be a good idea to give the employee a copy of a note if it confirms what you discussed. That way you are both clear on what you expect from the employee. If he or she fails to meet your expectations, now you have a paper trail to justify disciplinary action.
Of course, if all you ever do on paper is complain, your employees will hate you. So write a note when they do a good job too. When it's time for the employee's annual review, you'll be surprised how easy it will be to refer to your notes and summarize the prior year.
Nothing can prevent someone from filing a lawsuit, but in most cases, good documentation makes it easier to get rid of a weak case, often before it's filed. Also, be sure to remember the Carlsbad Chamber of Commerce as a resource.
The chamber often can connect a member with valuable information on best practices from other small businesses that are dealing with the same problems.
Feel free to call and ask for help. You can often get information and basic advice without having to pay huge fees.