You know it’s crucial to document all disciplinary actions. You’ve no doubt told managers and supervisors to keep all notes, memos and other paperwork. Those records could be invaluable later if you ever need to show that all your disciplinary decisions were based on good business judgment, performance and other legitimate and relevant reasons.
Woe unto the employer whose documents go missing—for any reason, including accidental destruction. Chances are an employee challenging a termination or other discipline will win a huge legal bonus. As the following case shows, if notes disappear, there is a presumption that they would have shown discrimination.
Recent case: Peter Brown worked for the Department of Homeland Security (DHS) as an organic chemist. Over the years, he often sent snarky e-mails to his bosses when they tried to get him to work on inorganic materials. One such message asked if the boss had “been in a coma.” Eventually, Brown’s bosses had had enough and fired him for insubordination and inappropriate conduct relating to e-mails.
Brown suspected different motives. He thought he had been discriminated against because he was Catholic and over age 40. He sued.
Brown’s attorneys asked to look at HR’s notes concerning his termination. But along with other records, those notes had been destroyed during an office move, even though the lawsuit had already been filed.
DHS tried to argue that HR personnel who had been involved in the decision could testify about the process. But Brown argued that, at best, their memories had faded. More persuasively, he argued it was fundamentally unfair for him not to have the notes to review.
The court agreed with Brown, granting a rebuttable presumption that the notes would have shown an illegitimate reason for his termination. DHS now will have to convince a jury that it wasn’t hiding anything. (Brown v. Chertoff, No. 406-CV-002, SD GA, 2008)
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