November 20, 2014

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#Human Resources Tip – Save Those Voicemails

Probably every Human Resources Manager has received a voicemail from an employee advising them he is “quitting.” Sometimes the employee even “thanks” the HR Manager and/or the company for the “opportunity,” and does not say anything negative about his employment experience.

I strongly recommend saving such voicemails from any employee the company suspects is a “litigation risk” (in their original audio format) for at least a year, and preferably two.

Why save them? Employees often conveniently change their “stories” or recollections after quitting. Such voicemails present compelling evidence to defeat an employee’s later claim that he was “fired” or “forced to quit” (aka “constructive discharge”). They are particularly useful in knocking down unemployment compensation claims and previously unreported claims of harassment. The employee is left to “explain away” his own statements, and will not appear credible in doing so.

Why save them that long? Under most federal and state laws, claims for discrimination, harassment and retaliation generally have to be asserted within 300 days of the alleged adverse employment action. Retaining the voicemail for at least a year will ensure you have it available if a claim is filed. Keeping them two years is preferable because claims under the Federal Family and Medical Leave Act (FMLA) and the Federal Fair Labor Standards Act (FLSA) can be asserted 2 (or even 3) years later.

Bottom line: don’t hit the “delete” button, and you may “save” your case!

© MICHAEL BEST & FRIEDRICH LLP

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About this Author

Mitchell W. Quick Michael Best Friedrich LLP
Partner

Mitch Quick is a partner whose practice includes all aspects of management labor and employment law, with an emphasis on employment discrimination litigation, wrongful discharge, and wage and hour law issues. He has represented large and small manufacturing facilities, dairy cooperatives, hospitals, financial institutions, nursing homes and county and municipal employers. He is co-author of Michael Best & Friedrich’s “Guide to the Fair Labor Standards Act” and editor of the Firm’s “Wage and Hour Question of the Month.”

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