If your organization doesn’t have a solid performance evaluation system in place, you’re taking a high-stakes gamble you just might lose.
Discharged employees who sue will have a much easier time getting to a jury trial if you can’t produce performance evaluations that back up why you terminated them. Without written and predisciplinary evidence, it doesn’t matter what reason you offer for firing an employee. The termination will probably look so suspicious that a judge won’t hesitate to keep the case alive.
Increasingly rigorous state and federal workplace laws have generated tottering stacks of personnel records and full disks in workplaces across America.
It’s tempting to have a spring cleanout. But if you destroy the wrong document, you could be destroying your career. Keep everything, and you may be violating federal regulations on the “reasonable” disposal of sensitive documents. Keep nothing, and you’re virtually guaranteed to lose in any legal battle.
Learn how to stay in compliance and out of court with our instructional CD: Personnel Records: What to Keep, What to Toss.
Recent case: Clark Davis, who was 52 years old at the time he was terminated, worked as an umpire for a baseball league. He sued, alleging that he lost his job because of his age.
Davis claimed the league executive director told him his yearly contract would not be renewed and he couldn’t umpire playoff games because he “had been doing it a lot of years, and we’re going to give the younger guys a chance.”
The director claimed he never made the statement. He said Davis hadn’t been rehired because he had played in a poker tournament in Las Vegas, which looked bad, and that his performance had deteriorated the past few years. Plus, the director said, Davis had offended one of the playoff teams in a dispute over a rain delay, and having Davis umpire the playoffs would have aggravated the situation.
Nationally known employment law attorney Joseph Beachboard answers tough questions on retaining and disposing of personnel records … a delicate balancing act with disciplinary documentation, performance evaluations, workplace investigations and medical data.
Joe reviews record-keeping requirements in light of the new laws and regulations. Plus, he shares best practices for gathering, storing and destroying personnel records. Learn more about our Personnel Records CD!
The league’s problem, however, was that it never did performance evaluations. Then it turned out that a much younger umpire replaced him. Plus, other umpires weren’t criticized or terminated for gambling.
All this, the judge concluded, was evidence that the claimed reasons might have been manufactured after the fact to cover up a case of age discrimination. A jury will decide if that’s what happened. (Davis v. Atlantic League of Professional Baseball Clubs, No. 07-5023, DC NJ, 2009)
Are you confidently up to date on the 2009 changes to recordkeeping management? Test your knowledge:
- How does the new Lilly Ledbetter Fair Pay Act change the retention requirements for your payroll records?
- What’s the general retention rule of thumb you can safely apply to almost any HR record?
- How long must you retain: applications, résumés, FMLA certifications, payroll records, safety records and much more?
- Do the new I-9 rules affect how you handle immigration records?
- Are you officially overdue for reviewing your files to ensure all employee information is up to date?
- Your recordkeeping duties change when you “reasonably anticipate” litigation. But what does THAT mean? And which records must you retain in such cases?
Get the answers to these questions and more with our informative CD!
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