What policies do you have in place regarding personnel record maintenance? When can you get rid of personnel records?
General Guidance for Personnel Record Maintenance
“Files should be obviously kept in a central location and someone, typically the HR department, should be the designated custodian. Only the custodian should put things into the file or take them out. Supervisors should not be allowed to insert or delete information from the personnel files.” Jason Ritchie advised in a recent BLR webinar. Supervisors should send all personnel documents to HR for filing.
“With respect to record retention, the best practice is to keep all records until termination plus ten years . . . ten years is a good round number that covers most of the federal laws that require you to retain records.” Ritchie advised. There may be some documents that need to be kept even longer, but this is a rule of thumb.
Why keep them for so long? Some guidance to keep in mind:
- Well-kept files are your friend.
- Regulatory retention periods are established for agencies’ convenience, not for employers’ purposes. It’s better to be safe than sorry.
- You cannot anticipate when a historical record will become relevant, if only for informational purposes.
- Lawsuits or claims may make the entire employment history relevant and useful.
- Statutes of limitations for state law contract claims can extend to 8 or 10 years (these have a longer statute of limitations than most other items).
Personnel Record Maintenance: Federal Statutory Retention Periods
Some subsets and categories within the personnel record can be kept for shorter periods of time. Be sure to comply with the federal statutory retention periods:
- Advertisements, postings, job offers and hiring records must be kept for 1 year after the decision has been made.
- Documents relating to requests for accommodation must be kept for 1 year after the request for the accommodation.
- Payroll records, time cards, time sheets, wage rate tables and records of wage deductions must be kept for 2 years.
- Employment contracts and collective bargaining agreements must be kept for 3 years. (Watch these state requirements closely – this is one area where state requirements are often much longer).
- FMLA leave documents must be kept for 3 years.
- Payroll tax data must be kept for 4 years.
- ERISA plan records and documents must be kept for at least 6 years.
- Records of employee exposure to toxic substances must be kept for 30 years.
States have varying document retention requirements, so be sure to understand those in addition to the federal guidance noted above.
Personnel Record Maintenance: Purging Employee Files
When can personnel records be deleted?
“First and foremost: you should not purge an employment file until you have a written records retention policy. You should only purge employment files pursuant to a written records retention policy.” Ritchie advised. This policy serves as a guide for the individual tasked with personnel file maintenance.
Minimally, the record retention policy should:
- Define what documents constitute official business records that are subject to the record retention policy.
- Include a provision that computer and electronic records are official business records and are subject to the record retention policy.
- Identify the person or department within the organization that is responsible for the business record.
- Include your record retention schedule(s).
- Include how records should be used, stored, transmitted, archived and destroyed to protect the security of official business records.
- Include an auditing function to ensure compliance with the record retention policy.
For more information on personnel record maintenance including document retention and deletion, order the webinar recording of ” HR Recordkeeping: Practical Strategies for Maintaining an Accurate and Efficient Records Trail.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Attorney Jason S. Ritchie is a partner at Holland & Hart LLP, where he represents clients involved in virtually all types of labor and employment disputes including claims of wrongful discharge, harassment, discrimination, breach of employment contract, and responses to state and federal investigations.