NEW YEAR’S RESOLUTION: CLEANING UP THE FILE ROOM

Whether 2015 was good, bad, or ugly for you, 2016 is here, offering a clean slate of opportunity.  Whether you want to improve your health, your relationships, or your professional life, the first step is to make a New Year’s resolution.  A true New Year’s resolution is much more than a well-intentioned plan that you consider in the abstract during the serenity of your commute, between the craziness of work and home; it is something you are committed to – something you put into action and see to its completion – despite resulting difficulty.

While there are probably a number of transformative New Year’s resolutions you could make, we here at the Employment Essentials blog are best suited to help you with resolutions related to the labor and employment field.  And, in that context, this proposed New Year’s resolution goes out to all the hardworking human resource professionals out there: Clean up the file room.

I know; I know.  That’s a scary, quite cumbersome proposition; but, it’s worth it in the long run.  Cleaning up your records and recordkeeping practices is like going to the dentist regularly.  It’s never your first instinct, but when you encounter a problem later, you are glad that you did.  Here are four helpful suggestions to get you started.

First, determine what employment records you must keep and for how long you must keep them.  There are several state and federal statutes that will guide you.  Unfortunately, these statutes are too numerous to tackle in one blog post.  A few of the federal statutes on point, however, include the following:

1. Age Discrimination in Employment Act

Payroll or similar records must contain the employee’s name, address, date of birth, occupation, pay rate, and compensation earned each workweek and must be kept for three years.

Records related to personnel decisions must be kept for one year.  These records include job advertisements, job orders to an employment agency or labor organization, and all documents considered in making an employment decision, such as applications, résumés, and the results of any pre-employment testing.

Employee benefit plan documents must be retained for the duration of the plan plus one year thereafter.

2. Fair Labor Standards Act

Payroll and other records containing employee information (see 29 C.F.R. 516.2(a)), employment contracts, and collective bargaining agreements must be kept for at least three years.  Basic earning records, time sheets, wage rate tables, and sale and purchase records must be kept for at least two years.

3. Family and Medical Leave Act (“FMLA”)

Basic payroll employment data (e.g., name, address, occupation, etc.), dates of FMLA leave, hours of intermittent leave, written notices and communications submitted regarding an employee’s leave, records of premium payments of employee benefits, records of any dispute regarding FMLA leave, and FMLA policies must be kept for at least three years.

4. Immigration Reform and Control Act

I-9 forms must be kept for three years after the date of an employee’s hire or one year after the date that the employee is discharged, whichever is later.

5. Title VII of the Civil Rights Act (including the Americans with Disabilities Act)

A personnel or employment record must be kept for one year after it is created or the applicable personnel action, whichever is longer.  Personnel records relevant to any complaint must be retained until final disposition of the complaint or action.  Applications to apprenticeship programs must be kept for two years from the date received or the period of a successful applicant’s apprenticeship, whichever is longer.  If applicable, a copy of the most recent EEO-1 report must be kept.

Second, you need to determine what employment records you want to keep and for how long.  In an information age, knowledge is power more than ever.  In other words, there may be value in (a) keeping employment records that you are not lawfully obligated to keep or (b) keeping employment records that must be kept for a period longer than the law requires.  Stop and think about the problems that you face as a human resources manager.  Is there a way that you can diagnose those problems by capturing and analyzing data in employment records?  For example, creating and reviewing exit interview records could tell you a lot about why former employees have left and how the labor market is changing in your industry from year-to-year, possibly even quarter-to-quarter.  Don’t waste accessible information capital.  Capture all you can manage and use it to your advantage.

Third, don’t shy away from destroying an employment record if it is warranted.  Destruction is an acceptable stage in the life cycle of an employment record, whether it is kept electronically or in paper form, insofar as (a) you do not have a legal obligation to keep the record; (b) due to the passage of time, you no longer have an obligation to retain the record; and/or, (c) you no longer have a use for the record.

Fourth, remember that Rome wasn’t built in a day.  Pace yourself and take breaks because cleaning up the file room could take longer than you might expect.  To avoid burnout and/or bewilderment, set goals for how many files you will sift through per quarter.  Doing so will also help keep you accountable.

With that, I wish you the best in this most worthy endeavor.  Go forth and conquer.

Ben concentrates his practice in the area of labor and employment law, counseling employers and litigating cases under various state and federal employment laws.
 
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