There are some common mistakes that employers make when preserving evidence. This can negatively impact a company’s ability to defend against legal actions brought by current and former employees.
Below are some tips on how to avoid these mistakes.
Sometimes security cameras capture employee misconduct. Video evidence of misconduct could deter litigation or be the key to prevailing in a lawsuit. If the video isn’t properly preserved, however, not only will you lose evidence that could support your case, but the loss of the evidence could actually create a presumption against you. Many security videos are on a loop and are recorded over, or digital files are destroyed after a certain period of time. Careful steps should be taken to preserve the original video or data file. The person whose job it is to preserve the video should seal it in a storage envelope or another secure container.
It’s very easy for critical e-mails to be lost through deletion, especially by a computer system’s regularly scheduled delete function. If you’ve sent an employee warning e-mails about misconduct or poor performance, you should contemporaneously print the e-mails and put them in his/her personnel file. Supervisors should also be aware that they should provide a copy of all warnings, including documentation of oral warnings, to Human Resources. Otherwise, if the manager leaves the company or the employee switches managers, the disciplinary history may be lost.
All documentation regarding an employee’s work performance and disciplinary record should be kept in his/her personnel file. Some supervisor’s keep a separate “supervisors” file for these types of records. Those files can be lost or removed, thus damaging a company’s ability to justify a disciplinary or discharge decision.
Electronic files have date stamps showing when they were created and by whom, when they were modified, and when they were printed. This is called metadata. Warnings, notices about critical performance issues, and other documents that could lead to discipline or discharge should always be new electronic documents. Sometimes questions about when a document was created or modified arise. To avoid issues with metadata stamps, never resave the original warning after it has been given to the employee.
Storage of files
There are specific statute of limitations on different claims, and you can be sued long after an employee leaves your employ. Make sure your employment records are stored safely and securely.
If you store former employees’ records off-site, be sure you have a good procedure for accessing and locating them in case you need them. All the precautions you took by properly documenting performance and conduct issues will be lost if you’re unable to locate your records.
If you consistently practices the proper way to document performance and conduct issues, and take care to preserve records that might be needed to support your position if an current or former employee makes a claim against you, your chances of successfully defending the actions that you took against that employee will be greatly enhanced.