The Personnel File
Keeping Employee Claims Away
ELIOT WAGONHEIM: If somebody thinks that they were fired unjustly they will look for reasons other than their employment to explain your actions.
ROCHELLE EISENBERG: My name is John and I was a fabulous employee and I knew what I was doing and you fired me. You did not want a man in that job you wanted a woman in that job and that is the only reason that you fired me.
ELIOT WAGONHEIM: They might say you know what you fired me just because of my race, or my sexual orientation, or because of my religion, or I happen to be in a wheelchair. All of the reasons where the law says no, they are not legitimate reasons for firing. In order to combat that your personnel file is invaluable.
ROCHELLE EISENBERG: The best way to prove it is through a documented record of problems that occurred and attempts made by the employer to have the employee remedy them.
ELIOT WAGONHEIM: What you have to do is to build a personnel file. Have a regular series of evaluations. Once a year, every six months, whatever is right for your business. Have it documented. Even if you and the employee do not agree, have the employee at least sign to acknowledge that you had this evaluation conference and you did discuss certain topics. If you have a personnel file that has a record of deficient performance from the employee or insubordination or any other events which you have told that employee are troublesome and have not been repaired fixing this is easy.
ROCHELLE EISENBERG: The employers response would be, hey yes John did work for me and he was qualified to do the work and yes John is a man and yes I did ire a woman but look, look at the record that I have for showing all of the times that John was late for work. The calls he would not respond to when customers would call. The mistakes that he made which cost us $100,000.00 in billings.
ELIOT WAGONHEIM: The harder situation is where there is absolutely nothing in the way of documentation and you just decide you need to fire this employee. The less documentation the greater the risk is there will be a claim because unless the employee agrees that the firing was completely justified they may go to a lawyer to challenge it.