November 11 Tip of the Week

“Document, Document, Document…”

The famous saying in the real estate industry is “Location, Location, Location,” which is largely taken to mean that, while you can change certain aspects of a property, you cannot change its location and decisions should be made accordingly.  A similar phrase that is equally applicable to the labor and employment law arena is “Document, Document, Document.”  Two recent, unpublished Sixth Circuit Court of Appeals cases illustrate the importance of documentation. 

The first case, Welch v. Heart Truss & Engineering Corp., involved a truck driver who was terminated due to customer complaints about graffiti, including explicit drawings, on delivered trusses.  The driver claimed that he was terminated due to a knee injury that the employer was informed about prior to the effective date of the termination.  As part of his claim that the decision to terminate him was based on disability discrimination, Welch pointed to the timing of the termination and the close proximity of the decision to the time that he informed his employer of his knee injury.  Based on this timing issue, Welch claimed that the graffiti complaints were a pretext and the actual basis for the decision was the injury that he reported. 

The second case, Kovacs v. University of Toledo, involved a human resources director who objected to a promotion that she felt violated federal equal employment laws.  The director, who was later demoted to a consultant position due to concerns about poor leadership and performance deficiencies, challenged the change in her employment status as retaliatory.  In her challenge, the HR professional claimed that the decision to demote her and, ultimately, terminate her was based on her complaint regarding the promotion and was, in fact, retaliatory. 

In both instances, the courts were unpersuaded by the temporal proximity of the employment decisions to protected activities.  The courts looked instead at the timing of the decisions and the facts surrounding the decisions in their entirety.  While acknowledging that timing of decisions may be one factor in finding violations of the law, the Court held that it is not a determinative factor and it could not alone support the discrimination claims in either case. 

Why are these cases important?  They are instructive for employers in terms of the importance of documenting their employment decisions – the timing and process used to reach the decision and the underlying reasons for the decisions.  Without documentation regarding when certain information was known or certain decisions were made, it is difficult for employers to overcome the temporal proximity argument.  But, if, as the employers in these two cases have shown, an employer has thoroughly documented the circumstances leading to a termination decision and the timing of that decision, it is much easier to overcome a pretext argument based on timing.  It is also a useful tool to ensure that employees, who realize that their jobs are in jeopardy, are not able to make a claim of injury or disability to avoid the consequences of their poor performance and conduct. 

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