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HR Solutions

CHRONICLES: How Long to Keep?

10/14/05

 

    Record retention requirements from federal and state laws and regulations are so numerous and inconsistent that HR practitioners can go mad trying to make sense of them.  This law requires six months minimum and that law requires something different.

 

    What to do?  Our perspective is that records should be retained for a period defined by the time it can take for someone to sue you.  That is, you need to retain the paperwork not because the law requires it but because you need to show fair treatment and business justification to defend yourself. 

 

    Hence at the EEOC you are disadvantaged if you argue that the ex-employee who filed the charge (299 days after she learned she was dismissed) was treated like others similarly situated....and you have no documentation to prove this fact.  This is because you failed to hold on to records documenting the like treatment.

 

    We strongly discourage record destruction within six months or even twelve months of the person's departure from the payroll.  This person's personnel file could save your neck as to ANOTHER employee who files a discrimination claim two years later.  Because charges and lawsuits can take more than two years to get processed and ended, and other employment claims, e.g., wage and hour claims, can go back three years for a wilfull violation, you must have documents showing how others were treated for at least three years back.

 

    This is not a magic number - you could easily store digital versions of personnel records, such as PDF files, forever.  And without taking up space.  But our suggestion is a minimum of three years.

 

    NOTE THAT THIS IS INAPPLICABLE TO OSHA RECORDS:  THEY MUST BE RETAINED FOR NO LESS THAN FIVE YEARS.