Careful recordkeeping and retention practices in the employment context are required by various federal and state laws, not to mention, essential to protect an employer's interests and limit its liability in the event of an investigation, claim, or lawsuit.
There are a myriad of federal statutes requiring that employers compile and retain employment related records. These statutes include Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Fair Labor Standards Act, just to name a few. Further, federal and state statutory limitations periods impacting employment related claims necessitate the retention of records for particular periods, often beyond those set by statutory recordkeeping requirements. These retention obligations are compounded in the event of an investigation, claim or lawsuit, in which event, employers are required to suspend regular deletion and destruction practices pertaining to potentially relevant documents and preserve such records indefinitely.
The task of determining what to keep, and for how long, can be a daunting and confusing task, particularly where the paper (or electronic files) never stop piling up. So what is an employer to do?
First, employers must assess the landscape and identify laws setting or necessitating recordkeeping requirements. Second, employers should establish a comprehensive records retention policy to ensure that records the employer is required to keep and records that may be useful for further reference are retained appropriately. Third, in the event of an investigation, claim, or lawsuit, employers should immediately initiate a "litigation hold" to ensure the preservation of potentially relevant documents beyond normal retention periods, consulting with experienced employment counsel when necessary.