Don’t Forget to Document, Document, Document
With all of the changes everyone has had to make over the past few months, not to mention the heightened stress we’re all feeling, it may be tempting to let certain practices slide or be less strict about following particular workplace policies. Flexibility during crisis situations may make sense in certain situations, but there are some areas where you don’t want to fall short of your usual standards. Documentation is certainly one of those.
Documenting decisions you make as an employer can feel like an extra, unnecessary step. It is additional work, after all, and that work adds up. Nevertheless, documentation is an important part of risk management, and the price of not documenting your actions can far outweigh the costs of doing so, especially if an employee were to ever allege discrimination.
When we talk about discrimination in the workplace, we’re not referring simply to the act of treating people differently or giving someone preferential treatment. Employers rightly treat individuals differently all the time. People are placed in different jobs, receive different pay, and work different hours. Some have better parking spots than others, vegetarians may get a special meal when lunch is ordered for the office, and the big boss may get away with a gruff personality while others are expected to be more cordial.
Rather, when we talk about the discrimination that employers need to avoid and prevent, it’s discrimination that’s based on an employee’s inclusion in a protected class. A number of laws at both the federal and state levels make workplace discrimination unlawful if it is based on race, color, age (over 40), sex, pregnancy, religion, disability, national origin, ethnic background, genetic information (including that of family members), military service, and citizenship or immigration status, among other classes.
The best way to avoid discrimination is to base employment decisions only on factors that are job-related, and this is where documentation comes in. Documenting the job-related reasons for your business decisions helps show that your decisions were not done for discriminatory and illegal reasons. Absent that documentation, you have nothing to show the legitimate basis of your decisions if any of your employment decisions are challenged. That makes it harder to prove that you weren’t discriminating unlawfully. Below are a few areas where documentation is especially important.
Discipline and Termination
Documenting all the actions you take to warn an employee about poor performance or unacceptable behavior before terminating their employment demonstrates that you made a good faith effort to help the employee meet expectations and avoid termination. You’re on the safest ground terminating employment if you can show that the employee understood what was expected of them and what would happen if they failed to improve.
Investigations Make sure that you document every step of an investigation as well as the resulting actions taken so you can show that you fulfilled your legal obligations. Having a clear record will also help you ensure that similar situations are handled consistently in the future.
Employers sometimes get into trouble with the law by asking questions of job candidates that reveal their membership in a protected class. Asking about church attendance, for example, may be intended to ascertain weekend availability, but it gives the applicant an opportunity to claim they were discriminated against. Hiring decisions should be based on job-related factors. Proper documentation shows that they were.
Promotions and Pay
Documentation here should show that pay and promotion practices are systemized and based only on bona fide job-related reasons. The federal Equal Pay Act requires men and women in the same workplace be given equal pay for equal work while Title VII of the Civil Rights Act requires that employers not discriminate based on someone’s inclusion in a protected class. If you lack documentation explaining why one employee is paid more than another in the same position, your risk of being sued (and losing) goes up substantially.