Responsible HR recordkeeping starts long before any job candidate walks through the door the first time, and doesn’t end until long after the person leaves.
Myriad employment laws force you to keep all kinds of documents for varying periods — including Title VII, ADEA, FLSA, FMLA, ERISA, the Equal Pay Act (EPA) as well as OSHA.
Most employment law attorneys recommend you keep everything until five years (some recommend seven years) after an employee has left, to be on the safe side of all the different laws.
The trouble with recordkeeping at most companies is that you don’t know how good your records are until you get involved in litigation – that’s the litmus test of any system. But by the time a lawsuit is filed, it’s often too late to remedy important gaps.
Litigation has exposed trouble spots in employers’ recordkeeping ranging from omitted information, incorrect information, sloppy files and even “smoking guns” lurking in files that prove bias or other illegal behavior.
What different laws require
Here’s a rundown of document retention rules under applicable laws, courtesy of leading employment attorney Joseph Beachboard:
- General personnel records – one year from the time a record is made or an action is taken, whichever is later.
- Equal pay – any record relied upon to justify wage differentials between men and women — two years.
- Payroll and leave records – name, address, occupation, birthdate, rate of pay and weekly comp — three years under FLSA, ADEA and FMLA. (Note: The Lily Ledbetter law creates a “rolling” statute of limitations going back to every time an inadequate paycheck was issued).
- I-9 forms – three years post-hire or 1 year after termination, whichever is later.
- OSHA logs – five years.
(Note: Employee medical records need to be kept 30 years after termination — some cancers due to workplace exposure don’t manifest themselves until much later. This is the outlier.)
Litigation? All bets are off
Once you’re on notice that any matter may become the subject of litigation, you have to keep everything until the case is settled, Beachboard warns.
You must “reasonably anticipate” litigation when you get notice that a lawsuit is being filed, notice of a DOL complaint or EEOC charge, or an attorney demand letter, but also when you receive an internal complaint – even if no government agency or attorney is yet involved.
What you have to keep obviously includes the personnel file of the complainant and all documents relating to his/her application, hiring, promotions or transfers, disciplinary actions, evaluations, training, payroll and medical records.
But it also include less obvious documents such as job postings and job descriptions, complaint records of others, investigation notes and documents, supervisor notes and records, and anything relating to an alleged harasser or wrongdoer.
It’s often quite a chore to put all documents together from various sources, such as the plaintiff himself (check his work area and computer), supervisors, co-workers, HR, payroll, accounting, benefits and medical.
Bottom line: A company’s best defense is usually in its records.
Your own attorney will love you if you have good employee handbook and policy receipts, strong and effective policies prohibiting harassment and discrimination, training records of plaintiff and his supervisor, and complaint records.