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Maintain old records on past employees–they could pay off during future lawsuits

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in Employment Law,Human Resources

Here’s one good reason to retain past disciplinary records concerning former employees: If one of them unsuccessfully applies for a new job opening with you, your previous records can justify why you declined to rehire him or her. That’s especially true if the parting was acrimonious.

Recent case: Margaret resigned from her job, claiming that the constant stress of worrying about whether she would be fired was too much. Before her resignation, she had successfully used FMLA leave of varying durations and for varying reasons. Her requests had always been approved when she provided required documentation.

However, she also had a generally spotty attendance record when FMLA leave was not a factor.

More than two years after quitting, Margaret applied for a new position. The employer rejected her based on her past poor attendance and performance.

She sued, alleging retaliation for taking FMLA leave in the form of refusing to rehire her, as well as an FMLA violation that allegedly occurred while she was still employed.

The court first dismissed that past FMLA claim, concluding Margaret waited too long to bring it.

Her claim that the employer punished her for using FMLA leave by refusing to rehire her was also tossed out. The court said the employer had solid reasons for turning Margaret down that were unrelated to FMLA leave—namely her past disciplinary history and attendance problems. (Yetman v. CDTA, et al., No. 15-2683, 2nd Cir., 2016)

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