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St. Charles, IL Chicago, IL Office Davenport, IA Office Minneapolis, MN Office Milwaukee, WI Office
St. Charles, IL Chicago, IL Office Davenport, IA Office Minneapolis, MN Office Milwaukee, WI Office

An Employer Must: Keep Records of All Important Employee Interactions

At Wessels Sherman, we cannot stress to our Illinois clients enough the importance of good record keeping. Employers of all sizes will say, "of course we keep our important records" and indeed they will have every time card, pay stub, and employment application for the previous five years (as they should). Those types of records are very important and do help protect employers from future wage and hour lawsuits under the Illinois Minimum Wage Law, Illinois Wage Payment and Collection Act, federal Fair Labor Standards Act, and other laws. However, many businesses fail to keep records of events or interactions which may have a less obvious but still enormous impact in protecting them from discrimination lawsuits down the road.

We often have clients come to us after receiving a discrimination claim or lawsuit from a recently separated employee. Most of the time, this employee will have been a substandard worker with a history of poor performance, questionable attendance, or skirting other employment policies, but often one that accumulates a number of small incidents or performance issues which add up into an untenable relationship from the employer's perspective. Unfortunately when such employees are terminated, they may file phantom claims of discrimination which go farther than they should (because employers do not keep records of all the little disciplinary and behavioral hiccups).

Generally, in Illinois, to make a basic (or "prima facie") indirect claim for discrimination claim an employee must show: (1) she is a member of a protected class; (2) she was meeting her employer's legitimate business expectations; (3) she suffered an adverse employment action (termination, suspension, demotion, etc.); and (4) the employer treated others similarly situated outside the class more favorably. The employer can disprove either of those four prongs or show that they took the adverse action against the employee for a non-discriminatory reason, i.e. a legitimate business reason.

In the past, I've see two techniques work very well for businesses to combat discrimination claims. One business used their computer system to document a conversation every time they receive a phone call regarding an employee. Notes from each phone call (and/or in-person meetings) are maintained in their system, whether the employee was calling in sick, getting a performance review, or whether a client was calling in to complain about the employee's performance on the job. If an employee is terminated or separates from employment for any reason, and wants to file a discrimination action, the employer has a valuable bank of documentation to illustrate the employee's past performance, as well as the fact that he or she was treated the same as other employees and probably did not face any discrimination.

Another technique is simple but effective to ensure employees understand the consequences of their actions and exactly what will happen the next time they violate a company policy, therefore helping to short-circuit future discrimination claims. The company can write a letter to their employees upon policy violations, outline the exact nature of the violation and consequences of another in a given time frame, and have the employee sign the letter. With these letters as evidence, it can be difficult for disgruntled ex-employees to later successfully claim that the discipline was for any reason other than the one documented in their disciplinary letters.

Thorough record keeping is an employer's greatest self-help tool in defending itself against discrimination and wage and hour lawsuits from disgruntled (former) employees. Performance improvement plans and "last chance" agreements are also techniques to use as part of a successful progressive discipline policy and clearly communicate an employee's status with the company. As always, Wessels Sherman attorneys are happy to speak with you about the documentation practice that will work best for your business and given circumstances, so that the company decreases its risk to the extent possible against discrimination claims.

Tyler J. Bohman is an attorney at Wessels Sherman, a management-side labor and employment attorney in Chicago, Illinois. Mr. Bohman successfully defends Businesses in all areas of Employment and Labor law in both State and Federal courts. He can be contacted at tybohman@wesselssherman.com or 312-629-9300.

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