Author: Luther Wright, Jr., Ogletree Deakins

Summary

  • Employees and job applicants generate many records that must be maintained and stored by employers. Records include all types of documents and data held in many different formats. These records are created and stored in a number of ways and should be maintained in an organized recordkeeping system. See Failure to Maintain Good Recordkeeping Practices Could Expose an Employer to Potential Liability.
  • Good recordkeeping practices begin with a properly maintained personnel file and applicant file. Federal laws and regulations require that certain records related to recruiting, hiring and selection be maintained and stored for specific periods of time. These records must be retained for successful and unsuccessful applicants. Failure to maintain records as required by the law may result in potential liability, including monetary fines, criminal penalties and lost lawsuits. See Documents Relating to Recruitment, Interviewing, Selection and Hiring That Employers Are Legally Required to Maintain.
  • Employment records should be maintained in a reasonable order and in a safe and accessible environment. Records containing medical information, information regarding unsuccessful job applicants and other confidential records must be maintained separately from other personnel documents and stored in a secure fashion. See Failure to Maintain Good Recordkeeping Practices Could Expose an Employer to Potential Liability.
  • Maintaining records for the legally required periods of time is the best way for employers to protect themselves against claims and lawsuits. Notice of a claim or lawsuit triggers additional record retention requirements and requires employers to preserve and maintain additional records for the entire time that the claim or lawsuit is ongoing. See Recordkeeping Requirements for Claims and Lawsuits.
  • Employment records can be stored electronically, but there are a number of issues to consider when deciding to create or convert to an electronic recordkeeping system. Additionally, original documents that have legal significance, such as notarized documents or original insurance documents, should be retained at all times, regardless of the type of recordkeeping system used. See Hard Copies of Electronic Documents Versus Electronic Storage.
  • Employers need to adopt record retention policies that protect them from violating the law. The policies should also address record destruction procedures and timetables. A record retention policy should be coupled with a handbook or manual statement and a training program to educate employees about their preservation and retention responsibilities. See Creation of Recordkeeping Policies.
  • Employers should perform internal audits to monitor their compliance with applicable laws and their recordkeeping policies. Retention policy procedures should also be audited to make sure employees are following the policies as written and that they are complying with legal holds. See Internal Audits.