They provide key evidence and can help companies avoid various types of lawsuits.

In one recent case, an employee sued after she was fired for missing too many days of work without authorization.

She claimed her most recent string of absences was because of a medical condition, meaning she should’ve been protected under FMLA.

But when she requested FMLA, the company looked through her payroll records. It turned out, she’d only worked 1,248.8 hours in the previous 12 months — making her 1.2 hours short of FMLA eligibility. So the company went through with her termination.

In court, the judge agreed with the company’s decision. The law’s the law, and the employee wasn’t eligible for FMLA protection.

Cite: Pirant v. U.S. Postal Service.

The Department of Labor (DOL) has created a Web page dedicated to the law’s revisions. It contains fact sheets and Q&As on both military service member leave and the changes made to traditional FMLA leave.

Also, it’s a great place to find required FMLA forms and posters.

You can access the page here.

An employee tells his boss he needs time off to care for a sick family member — but says he doesn’t want to use FMLA. How should the manager respond?

Here’s some guidance from a recent court case:

An employee missed a week of work to care for his hospitalized mother.

He sent his manager an e-mail, saying he needed “a couple days off” to make arrangements for her medical care. Also, he said, “I could apply for the family care act, which I do not want to do at this time,” referring to FMLA.

After getting the e-mail, the manager tried to call the employee — 14 times — during the following week. He got no answer or response. A week after the e-mail was sent, the employee finally returned the manager’s calls.

The manager told him he was fired. Company policy said missing work for more than two days without notifying a supervisor was grounds for immediate termination. Since the employee only said he’d be gone for “a couple days” and had already missed a week, the manager decided he’d violated the policy.

The employee sued, claiming his absences should’ve been protected under FMLA.

The company argued he said clearly in his e-mail that he didn’t want FMLA. But the employee claimed he still laid out the reasons for his absence, which notified the company he was eligible for FMLA. Therefore, he said, the company was still obligated to send him the appropriate forms and ask him if he wanted FMLA leave.

No notice obligation

The company said the case should be thrown out. The court agreed.

The judge noted that there have been several cases where employees have turned down FMLA leave, even though they were eligible — often because the employee wants to save leave for a future need.

In those situations, the court ruled, the employees forfeit protection for their absences and are subject to company policy.

When workers decide not use FMLA, employers aren’t obligated to try and persuade them otherwise, or to consider their absences protected anyway — as long as the employees are properly notified that they’re eligible and aren’t misled about their FMLA rights.

Cite: Righi v. SMC Corp. of America

Rules and regs abound about what documents HR needs to keep, and for how long. To meet the requirements, more companies are storing records electronically — but are they applying the proper safeguards?

It’s easy to get tripped up. A myriad of federal and state laws have their own record retention rules, which creates a lot of confusion and causes many mistakes by employers. Here’s a quick rundown of the five biggest areas to watch for:

1. Personnel files

Keeping an adequate personnel folder for each employee is key to defending against lawsuits and comply with various employment laws. Make sure you include:

• a resume
• an application for employment
• interview notes
• references and background check records, and
• attendance records, documentation of disciplinary actions, etc.

How long should you hang on to those documents? The rule of thumb is one year after the employee leaves the company. That way they’ll be available in the event of a lawsuit.

2. Hiring records

The following hiring-related data must be retained:

• Equal Employment Opportunity Form (EEO-1) — Employers with at least 100 workers (or 50 workers and more than $50,000 in government contracts) must fill out this form every year. (The next deadline is September 30, 2008). The preferred filing method is the EEOC’s Web-based system, which will retain the data for 10 years.
• I-9s — Many companies keep the I-9 forms separate from the general personnel file so they be accessed quickly — during an audit, companies usually need to give the feds every employee’s I-9 within three days of the request. The forms must be kept for either three years after the employee is hired or one year after termination, whichever is later.

3. Payroll data

The Fair Labor Standards Act (FLSA) requires employers to hang on to:

• basic payroll records for each pay period (for three years), and
• the information on which the pay is based — i.e., work schedules, time sheets, wage rates, and records of any paycheck deductions (for two years).

4. Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA)

Under the FMLA, employers need to keep for three years:

• dates leave was taken (including hours for intermittent leave)
• employees’ notices and requests for leave, and the employer’s response (including e-mails from employees and managers discussing the need for leave), and
• the employer’s leave policy.

Also, employers must keep records of disability accommodation requests for one year.

Note: Privacy laws require that doctor certifications and other medical records be kept in a separate file. If stored electronically, medical info must be held in its own, password-protected database.

5. State regs

Many states have laws requiring longer retention periods than the feds. In those cases, employers must follow the state regs.

Make sure you check with your state to be positive you’re meeting the right requirements.

For more information on HR record retention, check out the report “Record Retention Dos and Don’ts: What to Keep, What to Dump” at www.pbpexecutivereports.com.

What difference can a deleted e-mail make? For one employer, it might be the difference between winning and losing a lawsuit.

A woman sued her former employer, claiming she was fired for taking FMLA leave. The company claimed she was let go in a restructuring that would’ve happened even if she didn’t take leave. But the judge didn’t buy it, and now the case will be tried by a jury.

One key piece of evidence against the employer: a deleted e-mail explaining why the woman was fired. Here’s what happened, according to the court opinion:

After the woman was fired, her manager sent an e-mail explaining the termination to the rest of the department. When she said she was suing, the manager was told to save all relevant documents – including e-mail – in preparation for litigation. But the e-mail was deleted anyway. (The employee got a copy, and brought it to the court.)

The manager said it was erased by mistake, but the judge didn’t believe the story. He ordered the company to be sanctioned. That means when the case goes to trial, the jury will be told the company deleted the e-mail on purpose, presumably to hide incriminating evidence.

New rules being enforced

The decision shows just how seriously new “e-discovery” rules are being taken. The rules, passed in December of 2006, hold companies accountable for preserving electronic evidence.

For HR, the most important part of the rules is the concept of a “litigation hold.” Most companies have a policy to delete e-mail and other documents on a regular basis. However, once a company thinks it might be heading to court, it has a responsibility to start saving any data that might be important to the case.

Lessons learned

In this case, the company told the woman’s former supervisor about the hold – but made the mistake of trusting her to preserve everything she needed to.

Planning ahead could have given the company a better way to make sure the data was being saved. For example, the IT department might have started archiving every message that mentioned the employee, or saving everything sent by people involved in the hiring decision.

Also, it’s a good practice to save termination e-mails and other messages in ex-employees’ personnel files, even if there’s no indication they’re going to sue. That will prevent problems like this if a lawsuit is brought, and in most cases, the extra evidence will only help the company.

Cite: Connor v. Sun Trust Bank