Most employment litigation boils down to a “he said/she said” contest. Often the jury finds it difficult to decide whom to believe.
Typically, when the jury cannot decide whom to believe, it will defer to the employment records. The employer has an advantage in employment litigation because it prepares the employment records.
Employers who have kept accurate, contemporaneous employment records will typically win the “he said/she said” contest. However, employers who lack accurate, contemporaneous records will often lose because the jury expects records to be kept and interprets the lack of records as a failure of the employer to prove its defense.
Most businesses preserve their documents and important records for a number of years and then dispose of them. However, as soon as litigation is anticipated, the business has an affirmative obligation to preserve its documents and records pending the resolution of the litigation. The documents and records that must be preserved include texts and social media pages. Failure to do so could result in court sanctions including the court refusing to allow the offending business to introduce evidence at the trial.
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