Wednesday, July 15, 2015

Recordkeeping policies: how long is too long?

Yesterday we examined a recordkeeping issue specific to potential adverse impact claims under Title VII. Today, I want to cast the net a little wider and look at how long you need to keep a variety of documents related to your employees.

A few important points:

  1. This list is in no way meant to be exhaustive. It merely provides a snapshot of how long you need to keep some of your key documents.

  2. Mileage will vary from state to state. For example, I suggest keeping certain records for 6 years because Ohio’s statute of limitation for statutory discrimination claims is six years. If your state has  shorter filing period, then some of your recordkeeping obligations may be shorter.

  3. If you don’t have a document-retention policy, you should. If you don’t have a guideline for how long to keep certain documents, then your employees have no idea when to destroy. They may keep documents too long, or may destroy them too soon, each of which has potentially disastrous implications in litigation. If you hold too long, then you may have to produce documents that you should no longer have, and if you destroy too soon you may open yourself up to liability for spoliation (destruction) of evidence or other sanctions.

  4. Check with employment counsel on numbers 1, 2, and 3. It’s bad idea to try to manage these issues without some legal input.

Without further delay, here’s the list:

Resum├ęs, applications, and related employment materials, including interview records and notes 6 years from date of hiring decision for non-hires and from date of termination for employees
Background checks, drug test results, driving records, company employment verifications, letters of reference and related documents 6 years from date of hiring decision for non-hires and from date of termination for employees
I-9 Forms The later of 3 years from date of hire or 1 year after termination of employment
Written contracts 8 years after expiration
Handbooks, and other policies or procedures 6 years after expiration
Collective bargaining agreements 6 years after expiration
Compensation and time records 3 years after termination
FMLA and USERRA and related leave records 3 years after termination
Performance appraisal and disciplinary action records 6 years after termination
Benefit records 6 years after filing date
OSHA and other employee safety records 5 years after termination
Workers’ compensation records 10 years after the later of the injury or illness or the close of the claim
EEO-1s 2 years after filing date
Affirmative Action Plans 2 years after close of AAP year
OSHA 300/300A 5 years after posting
ERISA 5500 6 years after filing