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While the blogs you list certainly should be on anyone's must read list, I wouldn't worry too much about this issue as the ABA became completely irrelevant years ago. If it weren't for bloggers who make the list linking back to it, I doubt anyone would ever visit the ABA's website at all. If it makes you feel any better, I didn't make the list either. Guess I didn't retweet enough ABA twitter posts last year.
Interesting new provision. I guess I can see the Catch-22 aspect to it that you note. However, I am not sure that in practice things will work all that differently than they do now. What exactly would be the purpose of stuffing an employee's file full of negative information in secret? My assumption would be that employees should be informed of negative information being placed in their file as a form of counseling, so that they can be put on notice and improve their performance. Not doing so just makes it look like the employer is making a book on the employee to support a pre-determined decision to terminate. I practice in Texas, which is a fairly anti-employee state. In Texas, employers are not even required to give employees access to their HR file under virtually any circumstances. So employees never know what has been placed in the file and said about them until it is used against them in a lawsuit or in the form of a negative reference. On balance I think it works in an employer's favor to be open and honest with employees about how their performance is being assessed. If something is important enough to document it in a permanent file, then it is important enough to warrant having an honest conversation with the employee about the issue. This creates a record of fair-handed treatment that will likely head off many employment-related disputes. And for those disputes that do make it to the courthouse, a long record of open and honest counseling will go a long way to convincing a jury that the employer is in the right. Chris McKinney
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