Tuesday, November 11, 2008

Do you know? Preservation of personnel files

Do you know? In Ohio, employers should preserve personnel files for six years after an employee leaves an organization. Under Ohio Revised Code section 4112.99, an employee has six years to file a discrimination lawsuit for all types of discrimination other than age (which, for some unknown anomalous reason is only 180 days). Because of this long statute of limitations, companies should not alter, destroy, dispose of any employee files or records until that time period expires. Moreover, all employees should be instructed pursuant to a written record retention policy of this requirement.

The potential penalties for the premature alteration, destruction, or disposal of any employee’s files or records are severe. For example, if an employee files a lawsuit related to his or her termination, and the employee’s personnel file cannot be located, a court may bar the employer from presenting evidence of the employee’s poor performance that led to the termination. A court might also create an inference, binding for the case, that the employee was, in fact, a good employee and that the performance problems did not exist. If a court believes that the disposal was done willfully to hide evidence, it may even go so far as to enter judgment in the employee’s favor. Courts take these obligations seriously, and so should you.