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?