Unfortunately, it is a common occurrence for employees and ex-employees to file lawsuits and other claims against their employers. In 2012 there were over 100,000 discrimination and retaliation charges filed with the Equal Employment Opportunity Commission (EEOC) alone. There were also thousands of claims under the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA), and innumerable wrongful termination claims, breach of employment agreement claims, grievance arbitrations, and non-competition disputes.
Given this potential exposure, it is critical that a Human Resources Manager “sweat the details” so that if an action if filed against his or her company, the company is in a better position to defend against and (hopefully) defeat it.
One little detail that I frequently see overlooked by company officials involves termination letters. It is not enough to prepare a termination letter and give it to the employee. It is critical that the company keep a signed and dated copy of the termination letter on company letterhead in the employee’s personnel file.
Failure to do so creates numerous evidentiary problems. First, the employee may claim the company never gave him a termination letter, and challenge the reasons the company now asserts were the basis for his termination. Second, unless prior steps are taken, printing off an unsigned “draft” from the electronic files often automatically changes the date on the letter, creating further confusion regarding when the termination occurred. Third, the person who originally signed the letter may not be employed still, making it difficult to prove what was communicated to the employee at the time of termination, and by whom.
To avoid creating these unnecessary evidentiary issues, take the extra couple minutes to make a copy of the signed, dated termination letter, and put it in the employee’s personnel file.
Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
Twitter: @HRGeniusBar & @wagelaws