Earlier this week I appeared on a webinar hosted by SelectSoftware Reviews and sponsored by Insperity, on protecting your business through the employee lifecycle. We covered hiring, onboarding, performance management, and termination.
One theme kept surfacing, hour after hour, question after question.
Documentation.
By the end of the hour, it wasn't just a talking point. It was the takeaway.
If it's not written down, it didn't happen.
I don't mean that as a cute aphorism. I mean it as a description of how litigation actually works. Judges and juries don't care what you remember. They don't care what you meant to do, what you're sure you said, or what "everyone knew" about an employee's performance. They care about what you can show them.
Testimony is cheap. Anyone can take the stand and swear that Employee X was warned three times before termination. But without a written warning, a performance improvement plan, an email, text, or Slack message, a note in the file — something — that testimony is just a lawyer's client saying what a lawyer's client needs to say. Opposing counsel knows it. The jury knows it. And your credibility takes the hit.
This is Personnel File 101, but employers still get it wrong constantly:
- Managers give verbal counseling and never memorialize it.
- Performance issues live in a manager's head, not in a review.
- Terminations get built on a paper trail assembled after the decision, not before it.
That last one is its own special problem. Contemporaneous documentation, created in the ordinary course of business at or near the time of the event, is powerful evidence. Documentation manufactured after an EEOC charge lands or a lawsuit gets filed looks exactly like what it is — and plaintiffs' lawyers love pointing that out to a jury.
Employers, train your managers and supervisors to build the habit of writing it down when it happens, not when you need it. The write-up doesn't need to be a legal masterpiece. It just needs to exist.
Because in a courtroom, the absence of a document isn't neutral. It's evidence too — just not the kind you want.
You can watch the entire webinar here.
Here's what I read this week that you should read, too.
Five Employment Law Lessons from Dolly Parton's "9 to 5" — via California Employment Law
Jack White Covers "Jolene" Live in Tribute to Dolly Parton: Watch — via Consequence
The Law Firm Scandal Every Manager Needs to Pay Attention to Right Now — via Improve Your HR by Suzanne Lucas, the Evil HR Lady
How to Spot a Toxic Leader—Before Hiring Them — via Harvard Business Review
AI Tools and Labor Law: New ABA Podcast Episode Explores the Legal Guardrails (and Minefields) — via Dan Schwartz's Connecticut Employment Law Blog
AI in Hiring Is Now Symmetric: Candidates Have the Same Tools as Recruiters — via TalentCulture
Big Long List of AI Laws – Notable Updates — via Privacy & Data Security Insights
Law Firms Are Buying AI: But Are They Really Using It? — via Above the Law
99.9% of Germs Eliminated. Also Her ADA Claims. — via Eric Meyer's Employer Handbook Blog
The real reasons employees leave — via Ragan.com
The Hidden Mathematics of Brewery Production for STEM Students — via Porch Drinking
Every Dry County Left in America, Mapped — And the Reasons Over a Million Americans Still Can't Buy a Drink — via VinePair