Record-retention policies keep attorneys on edge

For those overwhelmed and drowning in personnel paperwork, the first quarter of a new year is an appropriate time to review record-keeping and document-retention policies. How a company organizes its personnel records can ensure not only compliance with federal laws, but it also can make the difference between resolving personnel issues quickly and efficiently.

Messy, misplaced and inappropriately destroyed records also keep in-house attorneys awake at night: 86 percent of in-house attorneys surveyed by the Association of Corporate Counsel listed their main concern as “keeping track of company activities that may have legal implications.”

Employers face varying employment-related document-retention responsibilities imposed by a litany of federal anti-discrimination/employment-related statutes: the Age Discrimination in Employment Act; Americans With Disabilities Act; Fair Labor Standards Act; Family and Medical Leave Act; and Title VII of the Civil Rights Act of 1964. Complying with these responsibilities, however, can assist an employer confronted with discrimination charges or wage and hour complaints. For example:

“They let me go because I am 53.” The Age Discrimination in Employment Act requires employers to keep records for three years pertaining to the name, address, date of birth, occupation, rate of pay and compensation earned each week for every employee. Employers must keep for one year personnel or employment records related to job applications, résumés, promotions, demotions, discharges, transfers, layoffs, results of physical examinations and job advertisements. Employers must keep applications submitted by seasonal and temporary workers for the same amount of time as other applications.

“They treated me differently than other employees.” Title VII and the Americans with Disabilities Act both require employers to keep personnel or employment records for one year after the date the record was made or one year after the date an action was taken, whichever is later. In order to best respond to a timely complaint raised by a former employee, such records should be kept one year following the employee’s termination.

“They paid me less than a male working my same job,” or “They didn’t pay me overtime.” The Fair Labor Standards Act and the Equal Pay Act require employers to keep all payroll records, certificates, collective bargaining agreements, plans, trusts, employment contracts, notices, sales and purchase records for three years. Detailed records on employees who earn minimum wage should be kept three years, and employers should keep all basic employment and earnings records for two years.

“My boss shortened my time for family leave.” Under the ADA, records and documents relating to employee disability or medical information, certifications/recertifications or medical histories created for the purposes of the Family and Medical Leave Act should be kept securely as confidential medical records in separate files from the employer’s usual personnel files. The only employees who should be allowed to see these records are supervisors, managers, first aid and safety personnel and government officials investigating compliance. These records should be kept for at least three years.

In most cases, employers may opt to keep personnel records electronically instead of in traditional paper files. Such electronic records should be as accessible as the employer’s paper files. Electronic record-keeping must adhere to security requirements of the ADA and FMLA.

As this summary shows, numerous federal statutes dictate how long an employer should keep certain personnel records, and those statutes should be evaluated when preparing document retention policies. Employers concerned about the strength of their retention policies should consult competent employment counsel.

Jay M. Dade is a labor and employment attorney with Shughart Thomson & Kilroy PC in Springfield. He may be reached at jdade@stklaw.com.