Your new copying machine may be keeping copies of records that have been scanned into the copier's hard drive. You can't access those records directly, but someone could remove the drive and copy your confidential records.

"That's something everyone should be aware of," said attorney Catherine Moreton Gray, speaking at last week's National Employment Law Update in Las Vegas. It has implications for confidentiality, especially when the copier is disposed of, she noted. Gray is an associate in the Hartford, Connecticut office of Robinson and Cole LLP.

Recordkeeping is a critical HR function, she adds, but you won't get tested until there's an  audit, charge, or lawsuit. And if you fail the test, your poor recordkeeping practices can result in substantial financial penalties, and large verdicts in court.

What Records Must Employers Keep and How Many Files Do We Need?

There are several types of records that HR managers need to be aware of, Gray says. Here's her list of the most common records employers should keep:

Records Related to Hiring

  • Job postings and advertisements
  • Job descriptions
  • Applications & resumes
  • Interview notes
  • Tests
  • Reference checks
  • EEO data if required
  • Requests for accommodation

New Hire Records

  • Employee Records
  • Records Related to Job Classification
  • Exempt/Nonexempt
  • Full-time/part-time
  • Temporary
  • Independent contractor

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Compensation System

  • Job bands or salary grades
  • Job evaluation
  • Benchmarking analysis

Benefit Plans

  • Benefit plans and summary plan descriptions
  • Records related to eligibility for benefits
  • ERISA reporting
  • Retirement plans and 401(k)

Everything Else!

  • OSHA required documents
  • Policies and procedures
  • Affirmative Action
  • Tax forms and payments
  • Records to establish compliance with other laws

Stepped Up Enforcement Highlights Importance of Recordkeeping

Increased enforcement makes recordkeeping all the more important, Gray says, and you don't have to look far to find evidence:

  • We can expect a 30% increase in number of federal wage & hour investigators,
  • U.S. Immigration and Customs Enforcement (ICE) is cracking down on employers who hire illegal workers
  • There is a federal and state focus on misclassification of workers
  • Occupational Safety and Health Administration (OSHA) is stepping up enforcement
  • Office of Federal Contract Compliance Programs (OFCCP) has also staffed up and is pledging more on-site audits

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Storing Documents Electronically

One question that most employers are asking is, How about electronic storage of records? Gray notes that electronic storage is acceptable, however, there are guidelines that must be met:

  • You must have reasonable controls to ensure the integrity, accuracy, authenticity and reliability of records
  • Records must be maintained in reasonable order and in a safe and accessible place so they can be readily inspected or examined
  • Electronic records must be readily convertible into a legible, readable paper copy
  • Adequate records management practices must be established and implemented
  • All records must have high degree of legibility and readability

Original paper records are disposed of at any time after they have been transferred to the electronic recordkeeping system, Gray notes.

Your electronic recordkeeping system should be capable of:

  • Indexing
  • Retaining
  • Preserving
  • Retrieving, and
  • Reproducing documents.

Adequate records management practices include:

  • A secure storage environment
  • Back-up electronic copies
  • Off-site storage location
  • Quality assurance program with periodic checks of records
  • Retention of paper records that cannot be clearly, accurately or completely transferred to an electronic recordkeeping system.

In tomorrow's Advisor, benefits and pitfalls of electronic recordkeeping, plus help with the most basic record of all—the job description.

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