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.
Marta Moakley, J.D., Legal Editor
XpertHR has added several new documents to its stable of resources on internal investigations, including a How To on conducting internal investigations, an internal investigation checklist, an internal investigation policy to be distributed to employees and FAQs dealing with common issues that arise with investigations.
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.
In-depth review of the spectrum of Alaska employment law requirements HR must follow with respect to employee privacy.
In-depth review of the spectrum of Tennessee employment law requirements HR must follow with respect to employee privacy.
Employers in two EEOC cases were sanctioned by federal courts for destroying evidence. These cases illustrate the need for employers to implement document retention programs to preserve their company information and avoid litigation sanctions.
In-depth review of the spectrum of Tennessee employment law requirements HR must follow with respect to employee conduct.
Whether an employee has a right to inspect or copy his or her personnel records is a state-driven issue that depends on several factors, including whether the employer is a public or private employer. This quick reference chart indicates whether employees in a particular state have the right to inspect or copy their personnel file.
HR guidance on the legal risks and benefits of recordkeeping.
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