Employer Records Preservation: What to Keep and Why It Matters

Once a current or former employee threatens a claim, your business may need to keep more than it normally does. Good employer records preservation in Miami starts with knowing what to keep and who holds it. This page gives general information about Florida law.

What employment records and communications should a Miami employer preserve once a claim is reasonably anticipated?

Keep every record and message that relates to the employee, the decision at issue, or the dispute. That covers personnel files, payroll and timekeeping, performance reviews, discipline, complaints, and emails, chats, and texts among the people involved.

The scope follows the claim. A dispute about a firing reaches the termination file, the people who made the call, and the reasons they gave at the time. It doesn’t mean freezing every file the company holds.

Records count whether they are on paper or electronic. That includes files on company servers and work messages sent from personal phones or accounts. Reviewing your records schedule with counsel is a practical step for any employer.

When does the duty to preserve start for a Miami employer?

Preservation questions often come up before a lawsuit is filed, so it is worth raising them with counsel early. Questions about records often arise well before any papers are served.

Common warning signs include:

• a demand letter from an attorney
• a charge filed with a government agency
• a written complaint of discrimination or harassment
• a threat to sue made during a termination or dispute

Timing can stretch out. Records from months earlier may still matter.

Florida’s Whistle-Blower’s Act also protects employees who object to practices that violate a law, rule, or regulation. Written records of those objections and your response can be important. Don’t wait for formal service. The timing question depends on the facts, so raise it with counsel promptly.

How should a Miami employer issue a written litigation hold to managers?

Send a written hold notice to everyone who holds relevant records. The notice should name the subject and the time period. It should not reveal legal strategy.

Typical recipients include:

• the employee’s supervisors
• HR staff
• payroll and benefits administrators
• anyone who discussed the decision

Ask each recipient to confirm in writing that they received and read the notice. Send reminders on a set schedule. Update the hold when new people or new issues join the matter.

Communications with your lawyer about the hold are generally protected. Florida’s lawyer-client privilege covers confidential communications made to obtain legal services, as Fla. Stat. § 90.502 explains. That privilege has exceptions, including when the lawyer’s services were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew was a crime or fraud, as Fla. Stat. § 90.502 provides.

What should an employer do about routine deletion, auto-delete settings, and personal devices?

Turn off automatic deletion for every person covered by the hold. That includes email purges, mailbox clean-ups, chat retention limits, and scheduled deletion of old files.

Text messages and messaging apps often hold the most candid conversations. Work messages sent from personal phones or personal email count too. Ask the custodian to keep those messages intact rather than relying on memory.

When an employee leaves, secure the account and the device. Don’t wipe, reissue, or reset them while the hold is in effect. Accounts closed during routine offboarding are a common gap.

What can happen to an employer that fails to preserve employment records?

Lost records can weaken your company’s position, even when the loss was an accident. A court may respond with sanctions. Missing files also make it harder to show what happened and why.

Records can also help your side of the story. Records showing how the practice was reviewed can bear directly on that question.

Florida is an employment-at-will state. Records of the stated reason and its timing help show what the decision rested on.

Outcomes depend on the facts of each case. Documented preservation helps keep your account of events complete.

How can a business talk with KEW Legal about its records and an anticipated employment claim?

Talk with a lawyer before you delete, move, or reorganize anything connected to the claim. Running a business while handling a complaint or threatened lawsuit is hard, especially after a termination you didn’t expect.

KEW Legal focuses on employment law for employers and on outside general counsel work for businesses in Miami-Dade County. The firm has offices in Coral Gables and Sunny Isles Beach. Kristina E. Wilson is the responsible lawyer for this page, and our Coral Gables office is the bona fide office for it.

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