Gathering Evidence in the Workplace

Best Practices for Gathering Evidence in Support of Employment Claims

Employees are at a distinct disadvantage to their employers when it comes to gathering evidence in support of their legal claims.  Employers are, essentially, the keepers of all employment records.  And with strict confidentiality agreements and trade secret laws in place, it can be daunting for an employee to collect and keep evidence which supports her claims without risking a counter-suit from the employer.  While there is no bright line rule about what employer-related evidence employees can access and retain for purposes of litigation, we hope these best practices will help you figure out how to navigate this tricky water.

Before you start printing, downloading, or forwarding work-related documents to yourself, think carefully about what those documents contain.  Are they merely personnel records?  In other words, your own performance reviews or emails with your boss and HR about your compensation package?  Or are they substantive examples of your work which contain confidential and/or proprietary information which your boss might assert belongs to the company.  If its the prior, go ahead and keep those for your files so that you can rely on them in proving any legal claims you believe exist.  If, however, they are the latter, think twice before you hit send.

We have seen so many threats (and in a few instances legal actions) made against our clients for allegedly “stealing” company information when our clients have merely been gathering evidence in support of their claims.  For instance, if you have been put on a corrective action plan for poor sales figures, you may be inclined to save documents which show that your sales numbers are better than your male counterparts who were not similarly issued action plans.  This would be very strong evidence of discrimination and I can see why an employee might want it.  However, those records may include customer lists or pricing information which the company may try to argue you have no right to retain or use outside of the workplace.

So what should you do?  There is no correct answer here.  But there are some steps you can take to try to protect yourself.

First, do not go sleuthing for evidence.  Accessing other employees’ password-protected files or digging through someone else’s drawers is always going to be frowned upon.  Stick to the evidence with which you work on a day-to-day basis and to which you have access through your normal responsibilities.

Second, consider whether you can simply keep a list of the types of evidence you want.  For instance, if you know that there are certain emails which are slam dunk evidence in support of your claims, jot down a list containing the date, time and subject line of the email, as well as the identity of author and recipient(s).  You may also want to include a brief note that explains why the email would be relevant such as: “contains evidence of unethical kickback scheme about which I complained.”  Then give the list to your lawyer to include with a standard document retention letter.  This way, your attorney can tell the employer that you know that as of a specific date, certain relevant documents existed and that, in addition to a general obligation to preserve potentially relevant evidence, the employer is now on notice also explicitly preserve those documents in the list.

Third, if the documents are of the type which you can’t easily identify in a list, consider printing them and having your lawyer send them to the employer under a cover letter stating that they are directly relevant to your claims, you have not retained a copy in your personal possession, but that you want to ensure that the documents enclosed with the letter be preserved for eventual discovery if and when the claims proceed to litigation.  This helps ensure the documents’ retention, but also may serve to convince a reticent employer to take your claims and any settlement negotiations more seriously.

Finally, if you simply do not trust the employer to preserve the evidence or you just want the documents in your possession for other reasons, you may want to take the risk of retaining the relevant documents yourself.  The risk here is that the employer may attempt to file suit for breach of your confidentiality obligations or violations of trade secret laws among other claims.  While there are some cases that have held that retaining this kind of evidence amounts to “protected activity,” meaning that if the employer fires you or takes action against you for gathering evidence of this sort, it would give rise to a retaliation claim (see, for instance, Loudermilk v. Best Pallet Co. in our jurisdiction and, more recently, the Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo decision out of Massachusetts), there are other courts who may side with the employer find you liable for taking these documents.

Thus, to best protect yourself should you decide to take this riskier approach, just be certain that what you are retaining is directly relevant to your claims.  In other words, don’t download entire sub-folders of documents or records with the hopes that those records will help your claim.  Limit your retention to documents that you know help prove your case.  And, perhaps most importantly, DO NOT share the documents with anyone other than your attorney.  If there is any evidence that you have sent those documents to coworkers, or used them for your own personal gain or to court competitors, you will almost certainly find yourself in hot water.