Record Retention and the Law & Electronic Record

Record Retention and the Law & Electronic Record

Record Retention and the Law & Electronic Record Retention What records are you required to keep, and for how long? More employers are wanting to go paperless. Is this possible, practical and budgetable? Record Retention Federal Requirements 1 Year Retention Requirement

Job applications Resumes Job ads Screening tools/tests Interview notes Any record related to hire/no hire decisions Promotions Demotions Transfers Performance appraisals Terminations Reasonable accommodations (requests and approved) Training records Incentive plans Merit systems

Seniority systems EEO-1 survey and intake forms Drug test records (up to 5 years for records relating to Record Retention Federal Requirements 2 Year Retention Requirement (Requirement differs from 1 year requirement if employer is subject to Affirmative Action) Affirmative Action Plan/Data Applications Personnel records that support employment decisions Hires Promotions Terminations

Record Retention Federal Requirements 3 Year Retention Requirement Personal Employee Data Compensation Data (per pay period) even though there are no retention requirements under Lilly Ledbetter, it is recommended that employers retain records for length of employment, plus an additional 5 years! Records explaining any sex-based pay differences Annuity and Pension payments Fringe benefits paid

I-9 (3 years after date of hire or 1 year after date of termination, whichever is later) Polygraph test results and reason for administering FMLA leave all paperwork Record Retention Federal Requirements 4 Year Retention Requirement Wage amounts subject to withholding Agreements with employees to withhold additional tax Actual taxes withheld and dates Reason for any difference between total tax payments and actual tax payments

Withholding forms Record Retention Federal Requirements 5 Year Retention Requirement Log of occupational injuries/illnesses Records of injuries/illnesses Summary of injuries/illnesses Records of exposure to toxic substances per employee

Record Retention Federal Requirements 6 Year Retention Requirement ERISA reporting and disclosure for pension and welfare plans Summary Plan Description Annual Reports Notice of Reportable Events Amendments that decrease benefits Substantial decrease in plan participants Plan Termination Record Retention Federal Requirements NO Retention Requirement

COBRA (however 6 years from the date of record is recommended to remain consistent with ERISA) Qualifying Events such as Entitlement to Medicare Death/Divorce of employee dependent coverage) Employee termination Layoff Reduction in Force (causing loss of

Record Retention Federal Requirements DO NOT KEEP Any record of an employees associations, political activities, publications, communications or nonemployment activities, unless the employee submits the information in writing or authorizes the employer in writing to keep or gather the information. As long as this information is not due to their employment or completed during work hours. Record Retention Illinois State Requirements 5 Year Retention Requirement (federal requirement 1 year) Equal Pay Act of 2003/Equal Pay in Employment Rules

Name Address Occupation Wages paid Payroll records Date of hire Dates of promotions Qualifications for

Hire Promotion Transfer Discharge Disciplinary actions Wage rates Skills testing Job evaluations Job offers Employment contracts Collective bargaining agreements

UNLESS. Lawsuit Anyone? Electronic Record Retention Vs. Traditional File Folders File Setup Personnel/Employment File Content

Employment Application Emergency Contact Form* Documented Disciplinary Action Resume Employment Policy Acknowledgements Job References Performance Reviews Training Documents File Setup Benefits/Medical File Setup Health Insurance Application Forms

Life Insurance Application Forms Application for any benefit that requires medical information Requests for medical leave of absence FMLA reports/paperwork Physicians exam notes, correspondence, recommendations Medical related excuses for absence Medical job restrictions / ADA accommodation information Accident / injury reports WC reports of injury/illness Any other document that contains private medical information Emergency Contact Forms*

Electronic Record Retention Cons Filing cabinets still needed for some items Cost of program Stored on a server must have space, cost IT would have access to information Backups kept offsite Paperwork must be scanned in and kept until verified If not capable of being legibly scanned, must be kept in paper form Must be able to reproduce if requested More difficult to review employee file by manager/employee Computer crash / accessibility Another password to remember

With backups, is the information ever really purged? File Audit Checklist Personnel Files Are the personnel files maintained in a locked and secure cabinet, or have proper electronic security features been developed? Have all documents that contain protected information been removed from the personnel file? Documents that include medical information, SSNs or other protected class information such as age, race, gender, national origin, disability, marital status, religious beliefs etc. should NOT be in the personnel files. Supervisors should have access or be able to request access to personnel files to assist them in making employment decisions.

Are personnel files organized in a logical manner so that information is easy to find? How to organize the files is up to the company. The two most common practices are to maintain files in chronological order or to have files with different sections for different types of documents (e.g., performance, training, employment, etc.) Is there a policy or consistent practice regarding employee access to personnel files? Is this policy/practice compliant with any relevant state laws? File Audit Checklist Electronic Files Do you have a good document management system? Have you established clear parameters around which employees have access to which files? Have you implemented proven security and password protections to

ensure access is provided only to those with a need-to-know? Do you have a back-up system in place to ensure data are not lost? Do you have a secondary back-up system in the event both the software and its back-up are destroyed? Have you provided training to end users on how to properly use and protect information in the document management system? File Audit Checklist Medical and Confidential Files Are medical/confidential files maintained in a locked and secured cabinet? Do you restrict access to only those with a need-to-know? Supervisors usually do not have a need-to-know unless there is an accommodation requirement, in which case only the information they need to assess accommodation needs should be released to them. Only a few people should have access to these records to keep them maintained appropriately.

Other File Considerations I-9 Files Form I-9 and any relevant documentation should NEVER be left in an employees personnel file. Access is highly restricted. Keep in locked cabinet or secured electronic database. Hiring managers should not have access. EEO Records Any EEO data collection should be maintained separate from personnel files and used only for reporting purposes such as AAP, EEO-1 and internal diversity tracking. Do not allow EEO records to be attached or kept with other hiring or employment records. Access is highly restricted. Keep in locked cabinet or secured electronic database. Hiring managers should not have access

Other File Considerations Manager Desk Files There is debate over whether manager desk files should be permitted. It really may depend on how close the personnel files are maintained. Often, when personnel records are kept at HQ, then managers at other locations may find it helpful to maintain copies of records in the personnel file. If manager desk files are maintained, make sure they are locked in a cabinet or secured if electronic. Ensure all original documents are placed in the personnel file and managers keep only copies.

Managers should be trained on proper documentation procedures to ensure that notes in their files are not discriminatory or illegal. Be aware that manager desk files are discoverable in the event of a lawsuit. Questions?

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