Gone are the days when employers didn’t have to justify reorganizations or layoffs. Now—given the prevalence of electronic communications—you can expect a court to ask you to produce just about every piece of information used to determine who lost their jobs and who kept them.
Producing electronic evidence may be expensive. Failing to produce it can be even more expensive. Imagine how it will sound to a jury if you claim someone was laid off for financial reasons when you can’t produce a single spreadsheet or document showing how you arrived at that decision.
Carefully document every aspect of the decision-making process—and preserve it as evidence for later use.
Recent case: Gerald Eckhardt is confined to a wheelchair. He began working for Bank of America in 1996 and consistently got good reviews. Then, a new supervisor arrived on the scene and Eckhardt was demoted. Eckhardt claimed that during a meeting, the supervisor asserted his belief that the workload had taken a “physical toll” on Eckhardt and that he had “recent health issues.”
Then the bank laid off Eckhardt during a reorganization that it said was designed to cut costs. He sued, alleging that he had been targeted because of his disability. Bank of America stuck with its economic defense.
There was just one problem—it didn’t turn over much in the way of supporting documentation, claiming that it had erased hard drives and couldn’t find organizational charts or employee disciplinary information relating to the time when it terminated Eckhardt.
The court ordered the bank to produce the documents, even if it proved expensive to search computer backup files for some of the missing information. It wouldn’t let the company rely strictly on oral testimony from the decision-makers. (Eckhardt v. Bank of America, No. 3:06-CV-512, WD NC, 2008)
Final note: In cases concerning layoffs, don’t dismiss the sympathy factor. If the bank can’t produce the documents, the jury will have nothing to go on except oral testimony and the supervisor’s comments on Eckhardt’s “health issues.”
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