Employers must create and preserve documents in case of a lawsuit

August 11, 2010 Yosie Saint-Cyr, LL.B. Managing Editor Employment/Labour Standards, HRMS, Human Resources

files Employers generally win employment law cases when they can provide the courts with a paper trail of documentation (also called evidence) in support of their employment-related decisions, such as termination, disciplinary actions or inability to accommodate the needs of employees, among other things.

Poorly written, poorly preserved or non-existent documents can be quite damaging to a case.

We are not just talking about hard copies of documents, but electronic communication and data as well. With the growth of business and human resources technology, organizations of all sizes now create, save and delete massive amounts of electronically stored information and documentation.

Moreover, if the employer does not document or preserve relevant documents following the assertion of an employment claim, that fact alone can cause the employer to lose the case and face harsh punishment for negligent or bad-faith conduct.

In addition, employers must comply with the document recording and retention obligations that arise from various laws, actual or reasonably anticipated litigation, subpoenas, government inspections, investigations and audits.

Although legal obligations may vary among jurisdictions, below are certain general elements that should be considered when recording, retaining and preserving employment-related documents:

When creating documents, employers should be aware of the possibility that the documents may be reviewed by a judge in the foreseeable future. Thus, all documentation should only reflect and include the facts. Documents should be fair, just and professional, they should record actual dates and times, and they should not convey anything that you would not want anybody to know or use against you, or use swearing or mean-spirited/bad language.

Employers should not have to defend quickly and poorly drafted emails, memos, performance reviews, written warnings and other documents written by management and employees resulting from knee jerk, hasty and poor decision making or a tasteless or tactless sense of humour. Even worse, employers have been forced to deal publicly with emails and other electronic documents which contain written evidence of their employees engaging in harassing or other inappropriate or even illegal behaviours, or when private, confidential information was illegally distributed by inadvertently clicking “reply to all”.

Employers should adopt comprehensive document retention policies, and establish procedures for preserving, searching and producing print and electronic documents when needed. The policy must be customized to the employer’s specific business needs, must be in writing and must be simple to understand, adopt and follow.

Employers’ document retention policies must also include reasonable retention periods complying with the countless laws that contain specific record-retention requirements. They must also apply to all records in all formats: paper, photographic and electronic. The policy must include specific instructions for obtaining documents and the actions to be taken when certain events occur.

Employers must have systems in place for monitoring and auditing employees to ensure compliance with all applicable records and retention laws, obligations and policies.

Investing in a human resources management system (HRMS) to help standardize some electronic recordings, preservation, collection, search and retrieval protocols is a good idea, and there are inexpensive software applications on the market to do just that. Check out the HRtrack human resources management system from First Reference Inc.

Employers should make sure they are aware of the civil procedure rules in their jurisdictions for the preservation and disclosure of electronic and other documents. The application of the rules are not yet quite clear, and they vary depending on your jurisdiction, but in general, once there is an awareness of possible legal action, parties have an obligation to take measures to preserve all relevant electronic and other information. This obligation can arise before a claim is filed, for example, upon receipt of a letter from a former employee or their lawyer that sets the stage for a possible wrongful dismissal claim. Parties must make conscientious efforts to inform themselves about all relevant electronic and other information currently or previously in their control related to the possible litigation, search for all relevant information, sort it and disclose it (in due time) unless it is subject to legal privilege. This includes more than HR records but emails, digital letters and memos as well.

Intentional or reckless acts of altering, concealing, deleting or destroying relevant hard-copy or electronic information is referred to in the applicable rules of procedures as “spoliation”. The issue of spoliation arises in circumstances where evidence has been altered, concealed, deleted or destroyed to affect the outcome of existing or contemplated litigation.

The doctrine of spoliation may be applied within a wrongful dismissal case to remedy any unfair prejudice existing as a result of the missing evidence. When evidence is lost or destroyed it can be considered an abuse of process and can lead to a finding of contempt of court, the exclusion of expert reports and the denial of costs. Another key remedy for spoliation is the imposition of a rebuttable presumption of fact that the lost or destroyed evidence would not assist the spoliator.

During a wrongful dismissal or other employment-law-related claim, parties must provide information about any loss, deletion or destruction of relevant print and electronic information of which they are aware. Not all deletions of information constitute spoliation. Companies are permitted to implement reasonable document destruction policies, although they should provide for immediate suspension when a legal action is reasonably anticipated.

Once suspension is triggered, because you are aware of a possible litigation, employers should retrieve and make exact copies, electronic backups of all potential relevant print and electronic information that preserves the information, including all of the associated “metadata”. According to legal experts, “metadata” refers to data about the data, meaning, when dealing with a word document for example, the Word file would include details of who accessed and edited the file and when, what changes were made, etc. Make sure your email software and HRMS allow metadata or an audit log on who created the record, accessed, viewed, edited and deleted such records, along with reasons for the accessing and editing and dates and times.

Yosie Saint-Cyr
Human Resources and Compliance Managing Editor

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Yosie Saint-Cyr, LL.B. Managing Editor

Managing Editor at First Reference Inc.

Yosie Saint-Cyr, LL.B., is a trained lawyer called to the Quebec bar in 1988 and is still a member in good standing. She practiced business, employment and labour law until 1999. For over 18 years, Yosie has been the Managing Editor of the following publications, Human Resources Advisor, Human Resources PolicyPro, HRinfodesk and Accessibility Standards PolicyPro from First Reference. Yosie is one of Canada’s best known and most respected HR authors, with an extensive background in employment and labour across the country. Read more