If you develop a reasonable retention policy and follow through by regularly deleting information you don’t need, chances are an employee later won’t be able to say you intentionally interfered with the ability to present a legal case.
Employees who sue and ask for documents that have been destroyed can ask the court to conclude that the missing evidence would have been detrimental to the employer. In other words, the court could say destroying the evidence is proof of guilt.
But that won’t happen if you can show that the records were destroyed as part of routine policies on record retention and destruction—and that it happened before you had any idea the records might be needed in a lawsuit.
Get Behind the Closed Doors of Your Opponent’s Boardroom — Confessions of a Plaintiff's Attorney: Your Employee's Lawyer's Secrets Revealed
The key is that you must be prepared to show the destruction was routine. Avoid making exceptions to the policy unless it’s to place a “litigation hold” on the documents.
Case in Point: Paul Matya, who suffers from depression, sued his former employer for disability discrimination under New York and federal laws. During discovery, he learned his employer had destroyed the records of his meetings with an industrial psychologist arranged by the employer.
The company explained that those records were destroyed as part of a routine record retention program and before it had any idea Matya was going to sue.
The court rejected Matya’s request that the record destruction be considered evidence the company regarded him as disabled. (Matya v. Dexter Corporation, No. 06-2327, 2nd Cir., 2007)
What makes an employer a target for a lawsuit? If you knew what these practices and behaviors were, you’d change them. But how can you find out? With an insightful new webinar called Confessions of a Plaintiff’s Attorney: Your Employee’s Lawyer’s Secrets Revealed. Register Now...
Final note: There’s no reason to drown in paper or electronic records. Yes, you have to preserve documents when you know there may be litigation. But that doesn’t mean you have to preserve each and every document forever.
If in doubt, consult with your attorney before destroying records. He or she can help you decide on a proper retention policy.
Plaintiff’s counsel Whitney Warner will present her standing-room-only speech from June’s SHRM conference for you … as you learn in the comfort of your office. Warner will share the things employers do that slap a bull's-eye on their backs, including:
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- Who in the company is the bad actor
- What corrective actions are taken (or NOT taken)
- The reason given for termination
- The terminated employee’s performance evaluation
- How the internal investigation is handled
- Documentation (or lack thereof) of each step
- Communications with the plaintiff and the entire organization
- Answers in testimony and depositions
- And more!
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- 10 Secrets to an Effective Performance Review
- How to Write Meeting Minutes
- ASAP, get rid of materials that might be offensive
- Sample Policy: Smoking
- How does an employee's FMLA leave status affect how we conduct a layoff?
- Open inquiry protects against firing bias