“I know we had an e-mail/videotape/memo about that, but I can’t find it.” You might be surprised to learn that lawyers are often told there’s a key piece of evidence that would help in the defense of an employment claim, but the client just can’t seem to track it down. Let’s look at some common mistakes employers make when preserving evidence. 
Don’t lose it
Videotapes. 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.
Critical e-mails. 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, print the e-mails and put them in his personnel file. For that matter, supervisors must be aware that they should provide a copy of all warnings, including documentation of oral warnings, to HR. Otherwise, if the manager leaves the company or the employee switches managers, the disciplinary history may be lost.
Personnel records. Many states have different laws about issues like when an employee or ex-employee asks to see her personnel records and separate “supervisor’s” files.
Metadata. 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
Many states set a statute of limitations on civil rights claims and limitations on contract claims. 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. That may seem like common sense, but it actually isn’t all that uncommon for employers to have trouble finding the records they kept on former employees. All the precautions you took by properly documenting performance and conduct issues will be lost if you’re unable to locate your records.
Bottom line
Train managers on the proper way to document performance and conduct issues, and take care to preserve records that might be needed to support your employment decisions. If an employee makes a claim against you, your chances of successfully defending your actions will be greatly diminished if you’re unable to put your hands on your documentation.
Gary Fealk is an attorney and shareholder at Vercruysse, Murray & Calzone, P.C., in Detroit. His practice focuses on the areas of labor and employment litigation on behalf of private and public sector employers including cases involving non-competition agreements, discrimination claims, the Fair Labor Standards Act, National Labor Relations Act, OSHA, and ERISA, including multi-employer benefit fund collection actions. You may contact him at gfealk@vmclaw.com.
As a social worker for 20+ years, a major rule I followed and almost lived by was “if its not in writing it never happened”.