We have written a number of blog posts imploring employers to preserve their records, and a recent case out of Colorado illustrates why. In that case, the Equal Employment Opportunity Commission (EEOC) was investigating allegations that a company refused to allow prayer breaks for Muslim employees at a meatpacking facility. One of the defenses that the company asserted was that allowing these breaks would impose an undue hardship upon it because it would slow production to unacceptable levels.
The EEOC asked the company to produce records showing where the slowdown would have taken place, how much production would have slowed, and whether there were other explanations for the slowdowns. The company was only able to produce a small number of the documents that the EEOC requested, apparently because it had failed to preserve most of them. As a result of this failure, the court barred the company from using this defense. This could potentially cause the company to lose the case.
Employers should retain all records relating to potential litigation. Destroying documents needed in litigation could lead to sanctions imposed by the court and could even be a crime. This extends to electronic documents as well as written ones. If the employer receives notice of a threatened lawsuit, it has a duty to preserve documents relevant to the suit. This will likely require it to notify its employees of the need to preserve the documents.
In addition to preserving documents, employers should be sure to keep records of employee misconduct. If an employer fires an employee, the employer will need these records to fight any claims that the employee was fired for an illegal reason. These records should identify the employee’s misconduct and why it violates company policy. It should contain objective facts and avoid subjective opinions. It should include all witnesses to the event, and record in detail the behavior of the employee.
Are you unsure of which documents you should save and which you can safely get rid of? We can help you draft a document retention policy. Contact us for more information.