Document, Document, Document!


Several months ago on this blog, Marty LaPointe emphasized the critical need to document disciplinary issues prior to terminating an employee.   As Marty said, if it’s not documented, it’s as if it didn’t happen. Eric Meyer, on his (excellent) blog The Employer Handbook, recently discussed an object lesson in documenting disciplinary issues and — this is important — keeping the receipts.

On May 10, 2018, a California jury awarded a former Chipotle GM $7.97 million in compensatory damages for a worker’s comp retaliation lawsuit.    The $7.97 million award was before the jury decided whether she would be entitled to punitive damages – yes, more money.  (the parties reached a post-verdict settlement before the issue of punitive damages went to the jury).  Bill Murphy, writing for Inc., provides some context:  The jury award was about as much as the plaintiff would have made, had she continued working at Chipotle for another 114 years.

In its defense of the lawsuit, Chipotle claimed that the GM’s worker’s compensation claim had nothing to do with the reason it terminated her.  Chipotle stated that it terminated her in January 2015 because she’d been caught, on video, stealing $626 in cash from the restaurant’s safe.   At trial, Chipotle’s counsel told the jury that five employees looked at the video, and all of them determined from the video evidence that the GM had stolen the money.

I know what you’re thinking — this can’t be retaliation, right?   Five employees observed her stealing!  Chipotle had legitimate, non-retaliatory reasons to terminate!

But here’s the problem.

At her termination meeting in January 2015, the plaintiff denied stealing the money, and asked to see the video evidence.  The company refused to show the video to her, and worse… allowed the video to be overwritten after the plaintiff was fired.  The plaintiff’s attorney further told the jury that Chipotle deleted text messages and lost notes about its reasons for firing the employee.

The takeaways?    When you decide to terminate an employee for violating a major policy (such as, in this case, stealing), confront them with the evidence.  Here, if five other employees watched the video and reasonably concluded that a theft occurred, there’s no harm in showing the accused a copy of the video and allowing them the chance to explain.  Give the employee due process, and let them respond to the allegations before you make a final decision.

But more importantly, there is simply no substitute for documents and video when defending a discrimination, harassment, or retaliation claim in court.   Any time you decide to terminate an employee, it’s critical that you locate and preserve the evidence you relied upon in making that decision.   Preserve the video, any witness statements, and the remainder of the documents from your investigation and put them in a safe place.  You never know – it just might save you a few million down the road.


Image Credit: From Pixabay, Creative Commons license, free for commercial use.