Once you start hiring people, you run the risk of being sued by one of those employees. (And, no, you can't avoid this by having only contractors -- contractors have to meet very specific conditions. Trying to skirt these rules can also land you in court.) If you want to win these lawsuits, don't do what employment attorney David Miklas's client did: have no paperwork. He writes on LinkedIn:

I am handling a case where I requested the employee's file and I only get three things:
1) picture of the front of the employee's driver's license;
2) picture of the back of the employee's driver's license; and
3) picture of the employee's W-4

That's it.

I assume that I must have not been clear. So...I ask the client to give me EVERYTHING they have for this employee.

"I just did."

[Insert blank stare here]










The employer said they terminated the employee for performance but didn't have any documentation to indicate the employee had any performance problems.

Here's why this is a problem.

Where are your I-9s?

In order to work in the United States, you need to be legal to work -- that means either being a U.S. citizen or having a visa that allows you to work. A driver's license isn't enough to establish that. You have to fill out an I-9 form for every employee that verifies an employee's right to work and their identity. A driver's license establishes identity but not a right to work. You would also need to see, for instance, a birth certificate or a social security card (among other documents). 

It doesn't matter if you birthed the employee yourself and know for a fact who he is and that he's a U.S. citizen; you need the form. The U.S. Government gives you a comprehensive list of acceptable forms of identification along with pictures to help you verify the documents.

You can also use E-Verify to verify your employees' eligibility to work in the United States. There's no excuse for not getting this information within the first three days of employment, and, in fact, this is the law.

Document all disciplinary conversations.

If it's not written down, it didn't happen. Sure, you know you warned the person, but if the court can't see it, it's your word against the employee's. You don't want to be in that situation.

If an employee performs poorly, you need documentation for that. If you give an employee a positive performance review because you don't want to hurt their feelings, and then turn around and want to fire for performance reasons, the court may assume that you're less than truthful.

Document all performance conversations. You don't have to have the employee sign it -- although that helps -- just write down that on January 22, 2022, you told Jane Doe that her reports were shoddy and needed improvement. 

If you do ask the employee to sign a disciplinary document and the employee refuses to sign, that's fine. Just note. "Presented to Jane Doe on January 22, 2022, and Jane refused to sign."

At-will employment doesn't mean you can just fire someone.

Sure, technically, you can fire someone for any reason or no reason as long as that reason isn't illegal -- like race, sex, or another protected characteristic. But if you fire someone without warning or documentation, how will you prove that you didn't fire someone for an illegal reason?

Sure, they need to prove that you fired them for an illegal reason, but if you have no documentation, how strong do you think your case will be? It's far easier if you can show documentation.

Plus, you will need to show why you fired this employee instead of that employee if you have more than one "similarly situated" employee. If you want to claim that you randomly decided to fire Jane and keep John, you can bet the courts will want to know how you came to that decision. With no documentation, how can you defend yourself?

Remember to get your paperwork in line and document everything before you terminate someone. Otherwise, you'll have a tough time fighting back -- even if you are 100 percent morally right.