Originally published by Thomas J. Crane.
We see a lot of discovery issues regarding electronic data, these days. For example, many employers use cameras inside the place of employment. What if those cameras record alleged conduct that leads to termination? The court in EEOC v. Chipotle Mexican Grill, 98 F.Supp.3d 198, 2015 US LEXIS 42187 (D. Mass. 3/30/2015) addressed such a question. Chipotle had interior security cameras which apparently witnessed the conduct leading up to the termination. The manager received a complaint about one of the workers. The management team reviewed the video in question. The manager was not certain the video included the correct employee, but he believed it did. He saw what he believed was corroboration of the complaint and terminated the employee based on that video recording. The employer erased the video automatically within 30, 60 or 90 days of the incidents in question. So, the EEOC filed a motion for spoliation sanctions. The agency argued that the employer was required to maintain records regarding the employee after it received the EEOC charge.
But, the district court disagreed. It noted that it was not certain that the employer received notice of the EEOC charge before the video was recorded over. That is, it was not clear that Chipotle was on notice to retain the records regarding the employee, yet. So, there was no showing that the employer had acted negligently or intentionally. Too, 29 C.F.R. §1602.14 imposes a duty on employers to maintain records regarding an employee once it is aware an EEOC charge is pending. But, said the court, it would stretch the meaning of that regulation too much to say it included video recordings. And, maintaining video recordings would impose too great a burden on employers. See decision here.
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