If there’s one habit that consistently separates employers who successfully defend claims from those who don’t, it’s documentation. While compliance initiatives and training are great, regular ol’ consistent documentation is probably the most important.
As we head into a new year, this is the perfect time for employers to take a hard look at how (and whether) they are documenting the employment relationship. Here are a few things you could consider:
1. Start with Clear Policies and Expectations
I think most employers can understand that strong documentation begins before any issue ever even arises. Every employer – big or small – should consider whether they have the following:
• An up-to-date employee handbook
• Written policies that clearly set expectations around attendance, performance, conduct, accommodations, leaves, and safety, as well as include other state-specific rules
• Policies that are not just performatively written and tossed to the side or posted to the company intranet, but policies that are actually distributed, discussed, acknowledged, and followed in practice. Don’t forget to update them, too!
Ultimately, policies are not just formalities. They establish the rules of the road and provide critical context if a dispute later arises. When expectations are unclear or unwritten, employers can lose credibility quickly or look like they’re not running a tight ship.
2. Document Conversations — Especially the Uncomfortable Ones
Most employers have no trouble documenting the good conversations, but what about the not-so-good? It can be a mistake to not document the hard conversations.
Key conversations that should be documented include:
• Performance concerns and discipline
• Attendance issues
• Requests for accommodations or leaves
• Health-related discussions
• Workplace injuries
• Complaints and investigations
That may sound daunting, but it’s actually not that difficult. This is because documentation does not have to be formal or fancy. It doesn’t have to be lengthy or written with legal jargon. A short, contemporaneous summary of what was discussed, what expectations were communicated, and what next steps were identified can be invaluable years later.
What happens if you don’t document these conversations? Plenty of employers can share their not-so-great first-hand experiences, but ultimately, a big risk is that if you don’t have documentation, you won’t have any way to clarify or refute if an issue arises. This can be problematic in an existing employment relationship or even down the road, if/when litigation ensues. If it wasn’t documented, a jury may assume it didn’t happen.
3. Track Hours, Schedules, and Pay Accurately
Say it with me: employees’ time and pay must be accurate! Wage-and-hour claims are won and lost on records.
Employers should take steps to ensure that they are:
• Accurately tracking hours worked by each employee, every single day
• Maintaining reliable timekeeping systems and have clear policies about how to use them and how it translates into pay
• Preserving payroll records, and this includes timecards
• Documenting schedule changes and pay adjustments
The law generally places the burden on employers — not employees — to prove hours worked and wages paid. When records are incomplete or missing, courts often resolve disputes in the employee’s favor.
4. Preserve Communications (Yes, Including Text Messages)
Employment decisions are increasingly made and discussed over text message, chat platforms, and email. Employers should not assume those communications will always be available.
Text messages in particular are easy to lose when phones are upgraded, wiped, or replaced. If employment-related communications occur by text, employers must ensure those messages are backed up and preserved. There are numerous third-party services out there that offer both Android and Apple users the ability to easily and regularly back-up text messages.
Helpful Hint: Many people believe that they will be fine because cell phone providers can pull communications logs. Unfortunately, the real world is not like TV, and the ability of any party to an employment dispute to quickly and easily secure text message transmissions from a provider is unlikely. For that reason, if a communication played a role in a decision, it should exist somewhere other than one person’s phone.
5. Remember: The Burden Is on the Employer
This is a critical point that employers often underestimate. In most employment disputes, the law places the burden on the employer — not the employee — to:
• Prove what policies existed
• Show what expectations were communicated
• Establish what conversations occurred
• Demonstrate the legitimate reasons for decisions
And because statutes of limitation can stretch back several years, employers must retain records accordingly. A decision that seems routine today may be scrutinized long after the people involved have moved on.
Helpful Hint: check to see what’s required in your jurisdiction, remembering that there are sometimes different rules for how long you should keep payroll records, tax records, personnel files, etc.
6. Documentation Can Decide the Case
When employers fail to document — or fail to retain documentation — they don’t just weaken their position. They often hand the narrative to the other side.
The difference between a successful defense and an adverse jury verdict frequently comes down to whether the employer can back up its version of events with records created at the time, not explanations offered years later. Memories can be easily attacked; what’s black and white is harder to discount.
In the end, the new year is an ideal time for employers to audit documentation practices, update policies, and set expectations internally. It’s not glamorous work — but it’s some of the most important risk management an employer can do.
