Record-Keeping: Heed federal rules for discovery of e-mail, IMs — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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American workers can access the Internet, e-mail, instant messaging and other forms of electronic communications from anywhere at anytime.

While electronic communication helps people do their jobs, it also leaves a trail. A telephone conversation relies on the memory of two participants, but e-mail and IM discussions can be preserved for years to come. And, given the casual way so many people fire off e-mail these days, that can spell legal trouble for employers.

When your organization is sued, the discovery process begins. Suddenly, you're under a legal obligation to turn over lots of information related to the case. Much of it could be held deep in your organization's e-mail and computer files. If you drag your feet or try to deliberately destroy incriminating documents, a court could hit you with big fines or even send business leaders to jail.

Use the CD from this interactive webinar — Electronic HR Records: Compliance/Best Practices Workshop — to craft an electronic records retention policy that includes:
  • How electronic retention rules differ from paper standards
  • How to know when it’s safe to scan a document and dump the paper original
  • Retention policy changes needed due to the new Lilly Ledbetter Fair Pay Act requirements
  • The best methods for keeping records safe and secure
  • Electronic I-9s: How to comply with the strict new federal rules on completing, signing and retaining
  • The four steps you must include in your electronic I-9 program

The Federal Rules of Civil Procedure give courts broad discretion to sanction employers who miss discovery deadlines or destroy documents.

Examples: A federal judge fined PricewaterhouseCoopers $345 million for such a delay. And another court fined Morgan Stanley for overwriting certain electronic files.

What's new

In April 2007, the U.S. Supreme Court, recognizing the new world of electronic records, approved changes to the Federal Rules of Civil Procedure. The rules require lawyers and defendants to come clean about the electronic files they retain and how to decipher them.

The rules require all parties to federal employment lawsuits (and other suits), to:

  • Sit down at the beginning of the lawsuit and hammer out plans for turning over electronic records relevant to the lawsuit.
  • Detail exactly what electronic records they have, including e-mail, memos and other records kept on hard drives, photographs, sound recordings and other data compilations.

Lawyers representing employees can demand copies of electronic records in a form that can be searched electronically. Employers can't simply print the records. That is meant to save plaintiffs the trouble of reading through thousands of pages to find what they want.

How to comply

Now's a good time to schedule a session with your lawyer to discuss how you keep your e-mail and other electronic records. Request guidance on when and how to delete or purge those files. Make sure to bring in your IT staff to the meeting.

Also, craft an effective electronic record-retention policy, one that complies with the new discovery rules but doesn't interfere with your right to delete outdated information.

Attorney and nationally recognized record-keeping expert Joe Beachboard examines today’s (and tomorrow’s) electronic record-keeping issues, giving you the low-down on the laws of E-Discovery and Information Management:
  • Which records you must be prepared to produce if hit with a legal complaint
  • What’s a “litigation hold” and when are you required to apply it to your electronic records disposal?
  • The safest way to dispose of electronic HR records—and the questions to ask yourself before you do so
  • How the new Federal Rules of Civil Procedure should alter your policy for storing and deleting company e-mails

The bottom line: These changes make even more of your electronic information available to the other side in a lawsuit. That's why it's more important than ever to create parameters for employees' use of electronic communications. Here are five tips:

  1. Keep sensitive info out of e-mail. Avoid sending e-mail that includes confidential company data or personal information about employees. If you must send e-mail, prepare the text as you would any other written communication, and read it over carefully before hitting "send."
  2. Phone first. For most routine communications, pick up the phone instead of sending an e-mail or IM.
  3. Create a uniform policy on e-mail and computer usage, including prohibiting dissemination of internal e-mail to noncompany e-mail accounts (see sample policy below).
  4. Monitor usage. Work with IT on policies and procedures for holding and screening outgoing e-mail.
  5. Make it professional. Never say anything in writing you wouldn't want your mother to hear in open court.
Electronic HR Records gives you practical advice on Enforceable Agreements: What’s Legal in the E-world:
  • Legal requirements when allowing individuals to complete applications online
  • What counts as a “legal” electronic signature
  • When can you change company policies via e-mail
  • The key steps to an effective electronic records management system

"Internet communications consist of electronic mail (e-mail), posting and reading of Web logs (blogging), the use of real-time message posting (instant messaging) as well as accessing Web pages (browsing or surfing).

"We expect employees to use these communications for work-related research and business-related communications. Inappropriate Internet communications include personal communications, jokes, letters, pictures and other nonbusiness related communications.

"Employees must observe company policies on intellectual property protection, privacy, misuse of company resources, sexual harassment, information and data security and confidentiality. Forwarding internal e-mail communications to persons not authorized to receive them is grounds for immediate dismissal.

"All usage policies apply to all company-owned equipment, even if the employee is accessing private e-mail or Internet communication accounts. Offensive and/or sexually explicit documents may not be displayed, printed, archived, stored, distributed, edited or recorded at any time on company computers."

These days, 70% of corporate records are stored electronically. Those electronic records can be your best legal friend … or your worst enemy.

When it comes to electronic records, mistakes are easy to make – and very expensive to undo. To find out how to avoid the legal pitfalls on electronic document collection, storage, retention and disposal, order Electronic HR Records: Compliance/Best Practices Workshop today

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