Employers must not only document employee poor performance but also ensure these documents are preserved for potential legal challenges in the future

Florida – In the complex world of human resources, one principle remains constant: if it’s not documented, it didn’t happen. This mantra is vital when addressing employee performance problems. However, the process doesn’t end with documentation. HR professionals and employers must also ensure that the documentation is preserved, particularly when there’s a reasonable expectation that an employee may pursue legal action, such as a claim of discrimination or retaliation. A recent case involving Brinker International underscores the importance of preserving key documents during and after an employee’s termination.

In the case of Kean v. Brinker International, a 59-year-old restaurant manager was terminated from his position at one of the company’s highest-grossing regional locations. According to Brinker, the termination was due to the manager’s alleged toxic behavior, mistreatment of employees and customers, and failure to “live the Chili’s way.” Kean, who had served the company for years, was replaced by a 33-year-old with no management experience.

The termination followed two employee complaints, one of which was unsubstantiated and the other was deemed baseless after investigation. However, as is common in many employment situations, there were multiple other complaints about Kean, but none of them were properly documented. In fact, no formal records were kept regarding the reasons for his termination.

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The trouble for Brinker began the day after Kean’s termination, when he notified the company that he planned to pursue legal action on the grounds of age discrimination. Shortly after, Brinker created a report summarizing the reasons for his termination and internal email traffic discussing those reasons. Unfortunately for Brinker, at this point, no effort was made to preserve the related documents, including the emails, performance reviews, or other materials that were relevant to the termination decision.

When Kean filed his lawsuit, the underlying evidence that had been referenced in the report was no longer available. In fact, many of the emails and performance reviews had been destroyed as part of the company’s regular business processes. Even more concerning for Brinker was that no one could recall anything specific about the termination or the reasons behind it. As a result, the company had to rely on the report as its only piece of evidence for its defense that Kean’s termination was not discriminatory.

The problem with this report was glaring: no one at Brinker could remember its creation, nor could they testify to its authenticity. The report had no known author, no one could recall participating in the discussions that allegedly led to its creation, and no one could confirm that it was created in the normal course of business. This meant that the report was not deemed a reliable business record. Consequently, the court ruled that the report was inadmissible, and Brinker was left without any supporting evidence to justify its non-discriminatory reason for Kean’s termination.

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The ruling was a blow to Brinker, as the case was sent back to trial court, and sanctions were considered for their failure to preserve evidence. This case offers several important lessons for employers:

1. Confirm the Veracity of Complaints: Before using complaints to justify disciplinary or termination decisions, it’s essential to ensure they are valid. Relying on unverified or uninvestigated complaints can result in legal complications down the road.

2. Hold Decision-Makers Accountable: Employers need to ensure that all decision-makers are held accountable for their actions and the reasons behind them. Decision-makers should be able to recall the rationale for disciplinary actions, especially when facing legal challenges.

3. Preserve Documents Immediately: It’s crucial not to wait for an employee to file a lawsuit or discrimination charge before preserving relevant documents. Once there’s a reasonable expectation of litigation, such as when an employee notifies the company of their intent to hire an attorney, employers should immediately begin efforts to preserve all relevant documentation, including personnel files, complaints, emails, and performance reviews.

4. Implement a Document Retention Policy: One of the best ways to avoid this type of situation is to have a clear, uniform document retention policy. This policy should include specific provisions regarding the preservation of documents related to HR decisions that could potentially lead to legal action. Having such a policy in place ensures that important documents are not lost during the normal course of business and helps protect the organization from potential legal repercussions.

5. Coordinate with IT and Legal Teams: In some cases, HR departments may need assistance from IT or legal teams to ensure that documents are properly preserved. IT departments can help prevent automatic deletion of emails or other electronic records that could be relevant to a legal claim, while legal teams can provide guidance on what needs to be preserved and for how long.

Employers need to realize that effective documentation is not just about recording information as it happens—it’s also about preserving that information in case it becomes necessary in a legal context. As shown in the case of Kean v. Brinker International, failure to preserve key documents can lead to serious consequences for an employer, including loss of evidence that could support the company’s defense.

For HR professionals, this case is a stark reminder that documentation and preservation must go hand in hand. By ensuring that employee performance issues are properly documented and that all relevant documents are preserved once there’s a risk of litigation, employers can protect themselves from the significant risks posed by claims of discrimination or wrongful termination. Effective documentation and preservation are essential for building a solid defense in the face of potential legal challenges.