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Legal Briefing: Employers Must Retain Electronic Records

Employers should create a data-retention policy that describes generally how it will retain such data, and limit when such records can be deleted.

September 16, 2013
Related Topics: Wrongful Discharge, Miscellaneous Legal Issues, The Latest
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Anthony Ramirez worked for Millard Refrigerated Services Inc. at its northern Illinois plant with a co-worker, A. Samson Pillay.

Millard operated a computerized labor-management system, or LMS, that tracked employee performance. Initially, Ramirez was told he performed his job satisfactorily, but was discharged one month after his hire when an official learned he had sustained an injury at a previous job. Pillay was also dismissed, but was not provided a reason. He alleged he was fired for protesting discrimination against Ramirez. Ramirez and Pillay joined their lawsuits in the U.S. District Court for the Northern District of Illinois, with Ramirez filing under the Americans with Disabilities Act. Pillay argued that Ramirez’s LMS numbers were manipulated. Before Pillay filed a lawsuit, he sent Millard a demand letter and both Pillay and Ramirez sent preservation notices to Millard’s general counsel, specifically referring to documents regarding Ramirez’s productivity.  

In defense, Millard relied on the LMS score as a justification for Ramirez’s discharge but admitted that the underlying data were automatically deleted within one year.

The court found that Millard acted in bad faith in failing to prevent the LMS from automatically overwriting data that it relied upon to justify Ramirez’s discharge. As a result, the court granted Pillay’s request for a jury instruction that the jury could make an adverse inference against the employer based on its destruction of information related to Ramirez’s performance if the company caused the destruction of data. A. Samson Pillay v. Millard Refrigerated Services, Inc., No. 09 C 5725 N.D. Ill., 2013 WL 2251727 N.D. Ill. (May 22, 2013)

IMPACT: Employers should create a data-retention policy that describes generally how it will retain such data, and limit when such records can be deleted. Also, when a current or former employee raises a claim of unlawful conduct, the employer should preserve its records.

James E. Hall, Mark T. Kobata and Marty Denis are partners in the law firm Barlow, Kobata and Denis, which has offices in Los Angeles and Chicago. To comment, email editors@workforce.com. Follow Workforce on Twitter at @workforcenews.

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