In California, where wrongful termination and retaliation claims abound, the way you document employee performance and discipline can make or break your legal defense. Thorough records build solid defenses. When in doubt, document again (and then do some more).
It’s also not just about what you write, it’s how you write it, when you write it, and whether you apply your process consistently.
Over the years, we’ve reviewed documents for hundreds of clients. The documents we’ve seen range from clean, policy-aligned records to files full of emotion and hyperbole, or no documentation at all. And here’s what we have learned: well-documented discipline is often one of the only things protecting your decision from being second-guessed by a jury, a judge, or a state agency.
So, what separates employer documentation that defends, from documentation (lack of documentation) that invites litigation? Here are some general compliance tips from the frontlines:
Document It Now, Don’t Delay.
Prompt documentation provides the strongest legal foundation. So, document incidents promptly. For example, if you issue verbal counseling, follow it with a confirming email within 1–2 days. That could be something simple like, “Thank you for meeting with me yesterday to discuss your need to arrive on time on the days you are scheduled to work. I appreciate your willingness to improve and adhere to your assigned schedule going forward. If there is any additional help I can provide to assist you in complying with this essential function of your job, please let me know.”
Consistency First, Consistency Always.
For example, writing up one employee for chronic tardiness while ignoring the same behavior from someone else isn’t just bad policy enforcement, it’s a pattern that plaintiff-side attorneys will spotlight as potential discrimination or retaliation. Discipline is most defensible when it’s applied evenly, and that requires a system of consistent application.
Vagueness: The Silent Liability.
We frequently encounter write‑ups stating simply, “[employee name] has been late several times.” That type of vague phrasing invites later attack by clever plaintiff attorneys. Instead, document exact dates, times, remarks, violated policies, and attach supporting materials. When you document specific incidents, include dates, times, what was said, what policy was violated, and attach key supporting documents. “Employee arrived 30 minutes late on July 5, 2025, and explained his late arrival was due to traffic…”, is far stronger than a general summary. It’s even stronger when you attach the timecard and the employee’s schedule for that day. Specificity gives your actions credibility.
Tie Every Write-up to Your Policies or Standards.
If you’re disciplining for missed deadlines, cite the performance policy. If the issue is a violation of timekeeping rules, reference the specific handbook section on timekeeping or another relevant policy document. If the discipline is for tardiness, point to your handbook section that says, “Regular and timely attendance is an essential function of every position at the company.” Tying the disciplinary action to your written policies grounds the issue in objective company expectations rather than personality clashes between a supervisor and a subordinate, or unwritten norms.
Tone Matters More Than Most Employers Realize.
Emotionally charged comments and speculative statements should never appear in a disciplinary record. Describing someone as “lazy” or noting “… he seems distracted by his recent breakup …” does more harm than good. These kinds of remarks can signal bias or retaliation. Even if well-intentioned, using inflammatory language can frame your constructive feedback as a personal rebuke. To avoid this outcome, keep your language neutral, professional, and fact-based. If emotions run high, wait two hours (or more if you need it) before drafting. Once calm, send a measured, professional message.
So, What Happens Next? Make That Clear Too.
Every disciplinary memo should include a statement about future expectations and consequences. For example: “Additional tardiness will result in further disciplinary action up to termination.” This gives the employee notice and helps your defense if further action becomes necessary. As a practical note, while we prefer that employers use progressive discipline for performance problems, we also advise that your policies reserve the right to depart from it in cases of serious misconduct.
Add a Signature Line.
Too often, we see files with unsigned write-ups, leaving it unclear whether the employee even received the notice. Always ask the employee to sign and date the document. If they refuse, make a note of the refusal and consider having a witness present. That signature isn’t about agreement, it’s about acknowledgment.
Employers should also give employees the option to respond in writing to any discipline included in their personnel file. Smart employers not only allow that response—they encourage it. Offering a written rebuttal form signals fairness, strengthens your process, and shows that the employee had a voice. If the employee does not respond, their silence can be interpreted as their agreement.
It Comes Down to This; What’s on the Record Counts.
Documentation isn’t just a necessary formality; it’s a legal asset or a liability if done poorly or not at all. In today’s climate, where claims can surface years after an incident, your written records are often the only surviving witness. Documentation needs to be complete and clear.
If your current disciplinary process is lacking, inconsistently applied, or missing key elements like policy citations, next steps, or response opportunities, fix it now.
Need a Second Set of Eyes on Your Discipline Documentation?
EmployLaw Group LLP partners with employers across California to strengthen disciplinary practices before claims are filed. From documentation templates to risk-screening compliance reviews, we help companies protect their business through practical compliance solutions.
Need help reviewing your current disciplinary practices? Contact EmployLaw Group LLP to schedule a documentation strategy review with our employment attorneys.