Role of Electronic Data in Employment Lawsuits

Workers face all sorts of possible employment law violations. Your employer may illegally discriminate against you, fire you for blowing the whistle, or fail to pay you overtime. When the time comes to seek compensation for the damages you’ve suffered, you will need evidence to support your claim. This evidence will likely include emails, performance reviews, and other electronic data.

Electronic data can show evidence of legal violations in an employment lawsuit. However, it may be difficult for you to access your employer’s electronic information. This article has information about how to gather and protect electronic data for an employment case. If you have questions about what evidence you need for your case, talk to an experienced employment lawyer for legal advice.

What Electronic Evidence Do You Need in an Employment Lawsuit?

The electronic evidence you need can depend on your type of employment litigation claim. Employment law covers a variety of legal issues, including:

• Employment discrimination
• Workplace harassment
• Wrongful termination
• Contract violations
• Wage-and-hour violations

Generally, you need evidence to support your claim. Relevant information includes anything that tends to make any fact in the case more or less probable. For example, in an age discrimination case, evidence that shows an employer said older workers aren’t as capable could show the jury that you were fired because of your age.

Can Your Employer Read Your Work Emails?

You may think you have a privacy right to personal emails you send on a work computer. However, privacy laws may not apply to information on company equipment when there is a legitimate business purpose for monitoring your emails. An employer can show they have a business reason for monitoring your work email and voicemail. This includes security reasons or ensuring you’re not violating company policies.

In an employment lawsuit, your employer will also gather evidence to defend against your claims. They will look for evidence to dispute your story and show they had a valid reason for what they did. Your employer may have easier access to electronic forms of evidence. They may keep your work emails, performance reviews, internet activity, and anything else on your work computer and/or in your work email account.

Can You Get Electronic Records From Your Employer?

When you file a lawsuit, the parties exchange information during discovery. Your lawyer can make a discovery request to your employer to get any relevant evidence. Evidence in an employment lawsuit includes paper and electronic discovery. Relevant documents may include:

• Payroll records
• Performance reviews
• Emails and text messages from your supervisor
• Employment handbooks and company policies
• Human resources records

Your employer may not provide all the electronic information they have. Your lawyer can file a motion to compel your employer to produce the information they have.

As a part of discovery, your lawyer can also use a deposition to get information from the employer. A deposition is a recorded question-and-answer session that will be admissible as evidence in court. Your lawyer can use the deposition to get your supervisor, staff, and co-workers’ testimony.

What Electronic Information Can You Keep Private?

While you may want to keep private information in your work emails or computer, courts generally give employers broad access to computer systems owned and managed by the employer. You can still keep some information private.

Some states have ruled that communications between you and your employment lawyer are privileged, even if sent on a work computer. Workers generally have a reasonable expectation of privacy in communicating with their attorneys.

Information involving labor unions and unionizing efforts may also be protected. National labor laws protect emails, social media, and electronic communications about unionizing. Employers cannot monitor workers if it interferes with protected labor activities.

What if My Employer Deletes All the Information?

At the start of a lawsuit, your lawyer may send a standard litigation hold letter to your former employer. This puts your employer on notice of a potential lawsuit. They should keep and store relevant evidence, including electronically stored information (ESI). Employers cannot destroy relevant evidence just to keep it out of a plaintiff’s counsel’s hands.

However, some companies have a standard retention policy where they destroy records after a certain period of time. If an employer destroys evidence, the jury can take an adverse inference against the employer for missing documents. Even if the employer has a standard destruction policy, they should retain the evidence or face sanctions by the court.

How Can an Employment Attorney Help?

It is challenging to get important electronic information for an employment lawsuit. Your attorney can help you identify the information you need and get it from your former employer. If you have questions about how you can get electronic data for your employment lawsuit, talk to an employment attorney for legal advice.