Did this company purposefully delete sensitive emails regarding a staffer’s discrimination complaint? 

Jennifer Hixson, who worked for the city of Las Vegas, complained that a colleague whom she had just broken up with was making disparaging remarks and comments about her gender and sexual orientation.

Hixson eventually brought her complaints to an HR pro at the company in March of 2010, who took a cursory statement. Hixson claimed the city then conducted a halfway investigation before forcing her resignation.

In September 2010, Hixson filed a complaint with the Nevada Equal Rights Commission. During the lawsuit, Hixson raised a stink because the company was unable to produce an email chain from April 2010 about her harassment allegations.

The company responded that it had no intention of destroying evidence: Company policy stated that all emails more than 45 days old were automatically deleted unless saved to a folder.

Why deleting wasn’t wrong

The court sided with the employer. Hixson’s original complaint to HR in March of 2010 wasn’t enough to put the company on notice that Hixson would eventually file suit.

In fact, the court noted that at the time the email was deleted, Hixson hadn’t threatened litigation, told the city she was gotten a lawyer or resigned.

Brett Anders, writing for the E-Discovery Law Today blog, had this takeaway for HR pros:

This is a welcome decision for employers.  It reinforces that not every internal employment complaint may result in litigation, and thus, will trigger the duty to preserve.  Rather, prior to issuing sanctions for spoliation of evidence, courts should conduct a fact-specific inquiry to determine whether litigation was reasonably anticipated.

The case is Hixson v. City of Las Vegas.

Retention rules

So what do you have to keep and for how long? Here’s a rundown of document retention rules under applicable laws:

  • General personnel records must be kept for one year from the time a record is made or an adverse action is taken, whichever is later.
  • Any record relied upon to justify wage differentials between men and women (equal pay records) should be held for two years.
  • Payroll and leave records that include name, address, occupation, birthdate, rate of pay and weekly compensation must be held for three years under FLSA, ADEA and FMLA.
  • I-9 forms must be held onto for three years post-hire or for one year after termination, whichever is later.

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