Why Document Retention Needs To Be Precise and Complete
Document retention is important for when something has gone wrong, doesn’t necessarily mean that the company or the HR department has made a mistake but someone is angry and they’re angry enough to file a charge or to file a lawsuit. At that point, what documents, what records, what information do you need to mount an effective and winning defense for the company or at the very least, what documents do you need to limit the company’s liability as much as possible?
The more effective paper work a lawyer has at their disposal during an employment discrimination case, the more effective their efforts are going to be on your behalf. Because we can all tell a story in a deposition but the way that our recollections are going to work, the way that our memories operate, it is inevitable that we’re going to have several different people giving several different versions of the same story.
In that type of situation, where the document retention doesn’t hold up, the company runs a very high risk of a jury choosing to believe the employee’s side over the employer’s side. Furthermore, in that type of situation, it is absolutely impossible to file a summary judgment motion or some other pre-trial motion that could get the case thrown out before it even sees a jury. If there’s a dispute on the facts, unless you want to settle the case, you’ll be going to trial.
So the important thing that you can do beforehand is make sure your document retention strategy works. Be sure those employee personnel files are well documented with the deficiencies and also the commendations that an employee receives while they’re employed with you. If I’m able to go back through this particular employee’s personnel file and establish through documentation that they have signed and that they have to admit to be true, it is a lot easier for me to tell the story the way that we want to tell it.
So, if you’re document retention is efficient, the depositions go a lot smoother, the case moves a lot more smoothly and it’s a lot easier for me to render effective legal advice to you on whether you need to settle or whether it’s going to be worth your while to fight a particular case.
When we talk about personnel records or personnel files, it’s the types of documents that are contemplated in the various statutes that lawyers work with on a day to day basis. And these tend to be major federal employment statutes or even state employment statutes. You should be aware that state law regarding document retention is going to vary widely among different regions and even among neighboring states. But we can see typically some different types of categories of personnel records that are going to be addressed by the major federal statutes in most state laws.
These include things like job applications, resumes or any other form of employment inquiry. You get a resume and a cover letter and that would count as a personnel record. Any records pertaining to failure to hire, if you have a particular position and you keep an applicant flow log, that is definitely going to qualify as a personnel record that you should factor into your document retention. Also any records relating to promotions, demotions, transfers, selection for training, layoff, re-call or discharge — basically any employment action that you might take on a day to day basis.
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