In this digital age, employers are finding there are brand-new questions they face while trying to stay in legal compliance with employee recordkeeping requirements. For example, what constitutes a valid electronic signature? Does an answer in email count as legally-binding when it comes to confirming managerial decisions? How long do specific types of documents need to be kept? Attorney Allen Kato tackled these questions and more in a recent BLR webinar. Read on for his answers.
Q. What are some employee records that you would want to keep as hard copies?
A.In an abundance of caution, I would suggest you keep:
- Signed offer letters
- Invention assignment and proprietary information agreement
- The documents around employee resignation
- Separation agreements, including a general release
Those types of documents can be particularly convincing in the litigation context for a judge or jury to actually be able to see/touch the original document if it is relevant. There may be other things that fit this description—if you think it’s important and want to keep a hard copy, there’s nothing wrong with that.
Q. Do medical enrollment forms need to be kept for 6 years past employment?
A.If it’s part of an ERISA benefit plan, then the 6 year requirement should suffice, yes.
Q. In the case of arbitration, how long do we need to keep the arbitrator’s decision and the documents used in the case?
A.When a complaint is handled via arbitration and the decision is made and over with, there’s generally going to be an appeal time. This time will vary, depending on the state, jurisdiction, matter at hand, etc. Once that appeal process time has expired, I’d suggest keeping it another year or so, but there’s no reason to keep it beyond that if you’ve passed the time where there has been a decision that is final and can no longer be appealed.
Q. How long should we keep RIF and WARN notices and documentation?
A.If we’re talking about a specific employee record, I’d keep it 5 years after termination. For general records, covering groups of employees, I’d keep it for around 2 years and that should be enough. But check the statute of limitations on a WARN violation.
Q. What constitutes a valid electronic signature? What is the best way to capture an employee’s acknowledgement and agreement?
A.To get a real electronic signature, the best way to do that is to use a vendor (such as Adobe) that provides a process by which an electronic document can be signed electronically and the vendor keeps the record and attests to the validity of the electronic signature. The employer can also preserve that record—which will hold up in a court proceeding or in an audit as a true electronic signature.
Apart from important legal documents, most employers don’t want to go to the time, trouble, and expense of using a true electronic signature process for mundane records. If you have signatures of employees on paper, make a scanned copy or some other version to make an electronic copy in that way. Just be sure you have a way to ensure that the document cannot be altered.
Q. Is an electronic notice plus acknowledgement with a checkbox equally as lawful as a true signature?
A.You have these click-through agreements, and yes they are considered enforceable and legal. My only concern about that is that, once again, you get into situations in a litigation context where, if it’s a particularly important acknowledgement or agreement, I don’t know if I would want to have to go before a judge or jury and have to use that as the basis of proof of validity of an important document.
The validity of the employee’s agreement to the document in question shouldn’t be an issue—so there may be an argument to get a real signature for truly important documents that you need confirmation that the employee received and understood and agreed to them.
Q. If you have a document to action the pay change for an employee, and the manager who must approve it replies in email with an approval (rather than in the document itself), does that qualify as electronic approval?
A.I don’t have a problem with that—I’d characterize that as a “personnel action notice.” I would suggest making a PDF of some type of copy of the confirmation so that it can be stored in the folder for that individual.
Q. Where can we go for definitive resources and documents that outline specific document retention guidelines for both federal and state?
A.There are a whole host of providers of “charts and checklists” for employment records for your location. They will list the laws that apply and what that means. The best way to find these is to do an internet search to find specific vendors that will list these things. BLR’s website also contains a lot of great resources in this regard as well.
For more information on electronic employee records, order the webinar recording of “Electronic Recordkeeping: What to Save, What to Delete, and Everything In-Between.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Allen Kato is an attorney in the Employment Practices Group of Fenwick & West LLP in San Francisco. His practice concentrates exclusively on representing management in equal employment opportunity, wage and hour, wrongful termination, privacy, unfair competition, and trade secret matters, and litigating individual and class action lawsuits before courts and agencies.