Just a quick reminder to employers to PRESERVE THEIR RECORDS when litigation is not only pending but also threatened.
If you wait until the sheriff serves you with a summons and complaint, you may have waited too long. "Threatened" includes getting a demand letter from an attorney, or receiving an administrative charge or complaint, or any reasonably objective indication that legal action may be coming. The records should be retained from the first "threat" until the dispute reaches a final conclusion: (1) settlement, or (2) determination by a court or agency, plus the expiration of all avenues for appeal.
The Equal Employment Opportunity Commission was investigating charges that JBS Swift & Company refused to allow prayer breaks for Muslim employees at a meatpacking facility in Colorado. Among other defenses, JBS claimed that granting the prayer breaks would be an undue hardship because it would result in unacceptable work slowdowns. The EEOC requested certain production records that might have shown whether the slowdowns were occurring, the severity of the slowdowns, and whether any slowdowns were arguably attributable to prayer breaks.
During the EEOC charge phase, JBS produced only a small subset of the records that had once existed.
The EEOC filed suit, and again requested those records. JBS produced some more, but far from what the EEOC had asked for.
Last week, a federal judge ruled that JBS would not be allowed to assert its "work slowdown" defense because of its failure to preserve the records or provide them to the EEOC.
'Nuff said?
- Partner
Robin has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, the Equal Pay Act ...
Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act).
Continue Reading
Subscribe
Contributors
- Jasmine L. Anderson
- Kathleen R. Barrow
- Kenneth P. Carlson, Jr.
- James M. Coleman
- Cara Yates Crotty
- Thomas M. Eden, III
- Matthew D. Gurnick
- William E. Hammel
- Deborah Hembree
- Steven B. Katz
- Ellen C. Kearns
- F. Damon Kitchen
- Angelique Groza Lyons
- John E. MacDonald
- Marcia McShane
- Robert L. Ortbals Jr.
- Alyssa K. Peters
- David P. Phippen
- Angela L. Rapko
- Katie M. Rhoten
- Aaron M. Rutschman
- Paul Ryan
- Robin E. Shea
- Kristine Marie Sims
- David L. Smith
- Jill S. Stricklin
- Kenneth Sulzer
- Patricia-Anne Upson
- Jack R. Wallace
- Heidi Wilbur
- Susan Bassford Wilson
- Jonathan W. Yarbrough
- David A. Yudelson
Archives
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
- January 2016
- December 2015
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014
- December 2013
- November 2013
- October 2013
- September 2013
- August 2013
- July 2013
- June 2013
- May 2013
- April 2013
- March 2013
- February 2013
- January 2013
- December 2012
- November 2012
- October 2012
- September 2012
- August 2012
- July 2012
- June 2012
- May 2012
- April 2012
- March 2012
- February 2012
- January 2012
- December 2011
- November 2011
- October 2011
- September 2011
- August 2011
- July 2011
- June 2011
- May 2011
- April 2011
- March 2011
- February 2011
- January 2011
- December 2010
- November 2010
- October 2010