Warn supervisors: Never delete texts and emails related to employee’s complaint

Be sure to warn supervisors and managers that if an employee has filed an EEOC or internal complaint or a state or federal lawsuit, deleting texts or emails related even tangentially to the underlying complaint can be risky.

It’s best to err on the side of caution. Let your attorney sort out whether the information in the documents is relevant and should be preserved.

Recent case: Timothy, who worked for Continental Carbonic Products, is white. His wife is black, and they have biracial children.

The company hired a man named Travis as a full-time driver. When Travis learned about Timothy’s family, he began making offensive and derogatory comments. He also made racist jokes and showed Timothy racist cartoons and memes.

Then Travis was promoted and became Timothy’s immediate supervisor. The racist jokes and comments continued.

Timothy finally had had enough and got into a verbal altercation with Travis. Then Timothy called HR and left a voicemail message complaining about Travis. His call was not returned, but three weeks later Travis was fired.

Timothy then demanded the investigative file, telling HR he needed them to file an EEOC complaint. HR refused and a few weeks later, the company fired Timothy too.

Timothy then filed a harassment suit. During a deposition, the company demanded access to Timothy’s emails and texts concerning Travis. He explained that he had deleted most of them, but also reminded company attorneys that he had sent messages to HR back when he had initially complained.

The company then asked the court to dismiss the lawsuit and order Timothy to pay a penalty for destroying evidence.

The court would not do so, explaining that Timothy was not as sophisticated as a lawyer or HR professional, who would know not to delete anything once it was probable that a lawsuit would be filed. Ordinarily, once someone files an EEOC complaint, they are under an obligation to preserve everything.

But Timothy had explained he had no plans to sue at the time he deleted the messages and didn’t even know the EEOC complaint was required to sue.

The court accepted his confession of ignorance and didn’t sanction him. However, if the employer had deleted those materials, it would have been a different matter. (Trainer v. Continental Carbonic Products, DC MN, 2018)

Note: How you keep records is crucial if you become embroiled in a lawsuit. If anything is destroyed after you are reasonably sure a lawsuit may be coming, you could face financial sanctions.

Worse, the court may rule against you in the actual matter under litigation, assuming that the messages you destroyed would have supported the other side’s claims.

In this case, the employer wanted to toss out the case because of the missing and deleted texts and emails. That’s an extreme sanction that’s seldom used against employees. Employers should know better, and they shouldn’t expect much mercy.

Final note: It’s very important to preserve electronic records when you terminate someone for misconduct. Texts and emails from managers to subordinates must be retained under such circumstances.

Immediately regain possession of any electronic devices you issued to terminated employees.

All email on the company system should be preserved, ideally at the beginning of the initial investigation. If in doubt, consult your attorney.

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