Although simple and oftentimes overused, sports metaphors can provide insight into complicated topics. When it comes to employment litigation, cases often boil down to "blocking and tackling." In other words, the fundamental (but unglamorous) activities often make a far greater difference than sophisticated lawyering.

Five key documents arise most frequently in employment litigation, especially in cases involving an alleged adverse employment action: the job description; the handbook; performance evaluations; disciplinary documents; and responses to administrative charges. Like tackling and blocking in football, these documents are fundamental but not glamorous - generally requiring meticulous drafting or frequent revision. The impact that they make in litigation, however, can lead directly to success or defeat.

 

Job descriptions

With positions often evolving or with companies changing structures, it can be difficult to keep up with an employee's core duties and functions.

But a fundamental question in litigation is going to be, "What did this person do?" Although a supervisor can provide this information through testimony at a later time, it is always best to have a contemporaneous document that clearly sets out both the employee's job duties and expectations.

The essential functions of a job are an important aspect in many litigations involving the Americans with Disabilities Act. As well, although not determinative, the job description helps in establishing duties or responsibilities in misclassification claims under the Fair Labor Standards Act.

 

Handbooks

Handbooks serve a critical role in any place of employment since they set out basic policies for employees. Unfortunately, however, handbooks can negatively impact employment litigation as much as they can help support important arguments.

Handbooks often serve as the document establishing that the employer has policies prohibiting the conduct the employee complains about, such as policies on equal employment opportunities, medical leave and requesting accommodations. But a handbook that fails to provide succinct and relevant policies does not serve as good guidance for employees; it even poses a danger during potential litigation. This most often occurs where handbook policies set out intentions or expectations that are not consistently applied or were not applied properly in the events resulting in the lawsuit. This could involve policies related to attendance, tardiness or general expectations regarding behavior.

Of course, policies should be updated and revised regularly. Even if there is no discriminatory motive, a manager's reliance on an outdated - or unlawful policy - will undoubtedly assist an employee in mounting a challenging case.

Many times handbook revisions should include trimming down the existing document. Handbooks sometimes become the storage place for an overabundance of policies or procedures (some of which are best kept in a separate operations manual), which could provide a roadmap for counsel to explore areas that might not arise otherwise.

 

Performance evaluations

Performance evaluations are routine documents usually included in an employee's personnel file. This document becomes important in cases involving a termination for poor performance.

Often, a manager's reluctance to provide an honest and thorough evaluation results in documents stating that most employees are "meeting expectations" or "exceeding expectations." This high rating will pose a contradiction when trying to convince a jury or judge that, in reality, the employee was actually not meeting expectations.

A skeptical third party will likely take these documents at face value and believe that the employee met expectations or exceeded expectations. If the manager has to explain the inconsistency by admitting that the evaluation is inaccurate, a judge or jury may surely begin to question whether the manager is being truthful.

 

Disciplinary documents

Disciplinary documents or termination sheets generally serve as a key piece of evidence detailing the employer's reasons for taking the actions that the employee claims were done for discriminatory or retaliatory motives.

If the adverse action involved a termination, the termination sheet will unquestionably be a key document. A clear explanation of the reason for the termination that is articulated at the time the event occurred can help anchor your credibility.

 

Response to administrative charges

Responses to administrative charges, such as statements of position to the Equal Employment Opportunity Commission, differ from the other documents discussed since they are created after the underlying facts have taken place. These responses also usually incorporate the other common documents as exhibits or sources of information. Such responses are critical since they serve as precursors for the story that the employer will flesh out in litigation.

Since they serve as the initial opportunity for an employer to address allegations of unlawful conduct, these responses have long-lasting effects. Such documents lock the employer into certain positions. In other words, if a termination or disciplinary decision is not articulated accurately or fully in a response, clarifying or elaborating upon the reasoning at a later time may appear suspicious. Using the "blocking and tackling" metaphor here, responses to administrative charges should be concise and simple, addressing the allegations directly and accurately.

To sum up, the legal environment is often changing and uncertain. Nevertheless, these fundamental documents will usually appear during employment litigation, and the time and effort spent in drafting them will reduce later difficulties.

Mauro Ramirez focuses on labor law as an associate in Fisher & Phillips' Houston office. He can reached at mramirez@laborlawyers.com or 713.292.0150.

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