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E-mail: What to Keep, What to Toss

by Michael E. Barnsback

Local, state, and federal laws, rules, and regulations impose record-retention obligations on all employers. In the employment context, you have to retain employee hiring and termination records, payroll and benefits records, wage and hour records, immigration records (Form I-9), Occupational Safety and Health Act (OSHA) records, Health Insurance Portability and Accountability Act (HIPAA) records, Employment Retirement Income Security Act (ERISA) records, Family and Medical Leave Act (FMLA) records, and on and on.

You know the list. And you have procedures in place to ensure you keep what is required — when in hard copy. Are you as precise when faced with the daunting task of retaining electronic records? While you know that certain electronic documents — such as spreadsheets, word-processing documents, and e-mails — must be retained, does that really mean all of them?

Changes in the Federal Rules of Civil Procedure highlight the importance of preserving electronic records. And you need to determine how best to deal with the uniqueness of electronic records, especially e-mails.

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The challenge of e-mails is volume
The fundamental challenge with e-mails is that they multiply at an exponential rate. Take a moment to look at your in box. How many e-mails do you see — 25, 50, 100, 1,000? How many are saved? Don’t forget to look in your “Sent Items” and “Deleted” folders. Guess at the total number of e-mails in all of your folders, and multiply that by the total number of e-mail users in your organization. If you haven’t already, you now see the challenge of e-mails.

E-mail strings can be transcripts of entire conversations — the ones we used to have on the telephone until we decided e-mail was more efficient, timely, convenient, or just preferable to an actual conversation. The volume of these communications disproportionately overshadows all other documents, including written reports, letters, or notes combined.

E-mails can be disturbingly candid, so they’re more “valuable” to the other party in litigation — and thus often targeted in discovery (the pretrial exchange of facts and documents). You need a document retention (and disposal) policy that allows you to produce required communications or substantiate the destruction of nonessential e-mails.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including documentation requirements for major federal employment laws

Specifically address e-mails in your document retention policies
If you don’t have a written document retention policy and/or haven’t trained your employees on it, you’re at risk. Without a reasonable policy, there’s no internal guidance for what records must be maintained and, more important, no guidance on what and when records may be destroyed.

All organizations should have written policies and procedures for managing information and records. The written policies and procedures should specifically address e-mail retention as well.

You might consider the following factors when developing retention guidelines for e-mails:

  • Develop a policy that challenges the employee to make a conscious decision about e-mail retention. Too many of us automatically save e-mails without giving much thought to why. An effective e-mail retention policy should provide guidelines for using subject matter (whether contained in the e-mail or its attachments) as a basis for e-mail retention. The guidelines should be driven by your industry’s relevant regulations and laws mandating retention of certain records.
  • Suggest procedures that encourage the employee to routinely delete nonessential e-mails. Why do we save e-mails confirming a lunch meeting that took place a month ago? We probably kept the e-mail before the meeting in case we needed to refer to it — and then didn’t have a routine that forces us to review and delete irrelevant e-mails. We probably have a lot of filed e-mails that were saved only because we didn’t know they could be deleted. Better safe than sorry, right? Not really. Encourage your employees to clean up the electronic clutter by providing retention guidance and deletion procedures. Your IT department will thank you.
  • Consider creating an electronic records repository for centralized saving of required records. Working closely with your IT professionals, create or purchase an appropriate centralized electronic records management system. Once established, you need to train (and routinely retrain) your employees on identifying e-mails to be retained and saving them to the central repository. Once in the repository, the records can be efficiently and effectively managed by an individual or team specifically assigned to the task. True, it’s a capital investment of time and money — but it’s one that makes sense. Hard-copy files, including personnel files, are kept in one central location, so why not electronic ones? Why allow important electronic records to be scattered throughout your organization?
    It will take time and effort to integrate electronic records into your document retention policies, yet it’s critical to do so. It will pay off in the long run.