Overview: Retaining accurate and consistent records in an organized fashion may be the best defense against: (i) an employee court claim; (ii) regulatory fines; and (iii) misperceptions/mischaracterizations of internal policies and procedures. Failing to keep adequate records renders an organization more susceptible to a court's award of damages.
Optimal recordkeeping practices require striking a balance between too many and too few documents. Employers need to avoid keeping duplicative documents, while taking care to maintain all relevant documentation for the recommended retention period. Identifying when too much documentation is too much, or when silence on a subject may pose greater liability to the employer, is simplified when an organization implements an effective document retention schedule.
Trends: Federal and state agencies have continued their focus on proactive enforcement activities. A number of agencies have added large numbers of investigators and auditors to their ranks, thereby increasing the likelihood and frequency of external audits or investigations for employers. For example, the IRS increasingly conducts audits on employer-mandated reporting requirements, and any applicable underlying documentation. In addition, the Department of Homeland Security's Immigration and Customs Enforcement (ICE) conducts strategic audits of employee I-9 forms. Appropriate recordkeeping habits may assist an employer in avoiding greater penalties for "knowing" violations of the laws by showing, at the very least, "good faith" attempts at compliance.
Author: Marta Moakley, JD, Legal Editor
Employers are required by law to conduct internal investigations when they learn of certain types of misconduct in the workplace, including sexual harassment, unsafe work practices or violations of federal, state or local laws. This section assists HR professionals in selecting the right investigator, interviewing witnesses, documenting the investigation and concluding the investigation.
Internal investigations are crucial for employers in responding to allegations of workplace misconduct. This internal investigations policy document informs your employees as to the purpose of conducting investigations, what their rights and responsibilities are during investigations and how the employer will use the results it obtains in the course of investigating. Having an effective policy is the first step toward conducting an effective investigation.
California employers seeking to notify employees of the process for accessing their own personnel files should consider including this model policy statement in their handbook.
California employers should require that employees acknowledge receipt and understanding of the employee handbook and, therefore, should consider including this model policy statement in their handbook.
Washington employers seeking to inform employees of their rights and obligations with regard to reviewing personnel files and the appropriate procedure for doing so should consider including this model policy statement in their handbook.
Maine employers seeking to inform employees of the rules surrounding the review of employee personnel files should consider including this model policy statement in their handbook.
Multistate employers face the challenge of complying with not only federal laws, but also differing state and local laws. This section highlights some of the states' differences in terms of preemployment testing and background checks, noncompetition and nonsolicitation agreements, and discrimination, pay and leave rules.
Illinois employers should include this statement in their handbook to educate employees about the availability of reasonable accommodations for pregnancy, childbirth and related conditions and to demonstrate compliance with Illinois law.
Illinois employers with five or more employees seeking to inform their employees of the rules surrounding the review of employee personnel files and medical records should consider including this model policy statement in their handbook.
Minnesota employers with 20 or more employees seeking to inform employees of the rules surrounding the review of employee personnel files should consider including this model policy statement in their handbook.
HR guidance on the legal risks and benefits of recordkeeping.