Personnel Records: What to Keep, What to Toss

Transcription

1 Personnel Records: What to Keep, What to Toss Thursday, December 16, 2010 Hosted By: Business Management Daily Presented By: Joseph L. Beachboard

2 Introduction Employers are required to retain various types of employment records for varying periods of time by Statute and regulation Federal State Case law 2of 37

3 Introduction (cont d) Discussion Topics General document retention guidelines Impact of Lilly Ledbetter Fair Pay Act General retention obligations due to litigation or threat of litigation E-discovery 3of 37

4 HR Recordkeeping: An Overview 4of 37

5 HR Recordkeeping: An Overview Responsible HR recordkeeping practices begin long before a job candidate walks through your door. And, they extend long after an employee leaves your workforce. 5of 37

6 HR Recordkeeping: An Overview (cont d) What s the ultimate test of the adequacy of your HR recordkeeping practices? Litigation. Trouble spots employers find in litigation range from information omitted in some records and incorrect information in others to sloppy files and even smoking guns proving bias or other illegal behavior. 6of 37

7 HR Recordkeeping: An Overview (cont d) What s a very general rule of thumb for HR recordkeeping? You should retain key personnel records for the duration of an employee s employment plus 5 years some say 7 years. Does the Lilly Ledbetter Fair Pay Act change this conventional wisdom? 7of 37

8 Basic Document Retention Requirements 8of 37

9 Basic Document Retention Requirements Employers are required by statute and regulation to create and/or retain various types of employment records for varying periods of time Title VII ADEA EPA FLSA FMLA ERISA OSHA 9of 37

10 Basic Retention Requirements (cont d) General personnel and employment records 1 year from the time the record is made or personnel action is taken, whichever is later (Title VII, ADA) Unless charge is filed with the EEOC then all relevant records (including those of comparators) must be kept until final disposition (Title VII) 10 of 37

11 Basic Retention Requirements (cont d) Any records that may be relied upon to support a pay differential between men and women evaluations, wage rates, job descriptions, etc. 2 years (EPA) Payroll records including name, address, date of birth, occupation, rate of pay and compensation per week and other information 3 years (FLSA, ADEA, FMLA) Supplemental back-up data for certain payroll records 2 years (FLSA) But note, the Lilly Ledbetter Fair Pay Act impact 11 of 37

12 Basic Retention Requirements (cont d) Documents relating to FMLA policies and procedures, including leave documents and information relating to leaves taken 3 years (FMLA) I-9 forms 3 years after hire date or 1 year after termination (whichever is later) (Immigration Reform and Control Act) 12 of 37

13 Basic Retention Requirements (cont d) OSHA related documents Log and summary of recordable injuries 5 years Employee exposure records on toxic substances and harmful physical agents, including monitoring info and MSDS 30 years Employee medical records duration of employment plus 30 years 13 of 37

14 Lilly Ledbetter Fair Pay Act 14 of 37

15 Lilly Ledbetter Fair Pay Act Ledbetter v. Goodyear Tire & Rubber Co. (2007) U.S. Supreme Court held that pay discrimination claims must be brought within 180/300 days of a pay decision Justice Ginsburg called on Congress to reverse this ruling 15 of 37

16 Lilly Ledbetter Fair Pay Act A new illegal act occurs with each instance of discriminatory compensation Applies to wages, benefits and other compensation Retroactive to the day before Ledbetter was decided by the Supreme Court (May 28, 2007) 16 of 37

17 Current Paycheck v. Current Pay Under Title VII, a plaintiff must prove that a pay decision is discriminatory This is the holding of the Ledbetter Supreme Court decision Fair Pay Act doesn t change this ruling 17 of 37

18 Current Paycheck v. Current Pay Under Title VII, each paycheck affected by an earlier discriminatory decision triggers a new charge filing period Reverses Ledbetter Supreme Court decision Normal 180/300-day charge filing period is inapplicable 18 of 37

19 Responding To The Lilly Ledbetter Fair Pay Act Examine and consider revising record retention policies Review and update pay and performance management practices, policies and records Train managers on new risks Conduct compensation self-audit 19 of 37

20 Litigation Retention Guidelines 20 of 37

21 Litigation Retention Guidelines Notice of potential charge or lawsuit triggers additional retention requirements Potential triggers when employer reasonably anticipates litigation Internal complaint Attorney demand letter Notice of filing of EEOC Charge or DOL complaint Notice of filing of lawsuit Discovery request Retention and preservation issues should be addressed at earliest opportunity 21 of 37

22 Litigation Retention Guidelines (cont d) Obligations Locate and secure all relevant documents in existence Ensure ongoing protection and retention of documents to be created Especially if plaintiff is still employed Maintain until final resolution of litigation (all appeals exhausted) or until statute of limitations has expired 22 of 37

23 Consequences Of Failure To Retain Inability to rebut plaintiff s claims or prove part of defense Attorneys fees and costs Exclusion of evidence Adverse inference in jury instructions rebuttable presumption that lost evidence would have been helpful to plaintiff Exclusion of a defense 23 of 37

24 What Are Relevant Documents? Anything relating to plaintiff s claims or employer s defenses Any document that is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request. Zubulake v. UBS Warburg LLC, (Zubulake IV) 220 F.R.D. 212, at 217 (SDNY 2003) 24 of 37

25 Relevant Documents (cont d) Plaintiff s employment records relevant to the claims Plaintiff s personnel file Application and hiring documents Promotion documents Disciplinary records Evaluations Transfers and changes Training records Payroll records Medical records 25 of 37

26 Relevant Documents (cont d) Other documents relevant to plaintiff s claims Relevant policies (from relevant time frame and relevant amendments) Job postings and descriptions Complaint records Investigation notes and documents Supervisor notes and records 26 of 37

27 Relevant Documents (cont d) Employment records regarding other employees as relevant to plaintiff s claims Plaintiff s supervisors Individuals treated the same as plaintiff under similar circumstances Plaintiff s other alleged comparators Alleged harasser/wrongdoer 27 of 37

28 Relevant Documents (cont d) Employer s Defenses Policies prohibiting discrimination and harassment Employee handbooks Handbook and policy receipts Training records plaintiff, supervisors, HR personnel, alleged harasser/wrongdoer Decision-making documents Records that would reflect any complaints made (and would reflect that plaintiff did not complain) 28 of 37

29 Example Company receives demand letter from plaintiff s attorney Plaintiff works in accounting department and is still employed Plaintiff alleges she was denied promotion to senior bookkeeper based on sex discrimination claims the position was given to Joe Smith Letter threatens litigation if Company does not place plaintiff in senior bookkeeper position and pay her back pay for period she was denied promotion 29 of 37

30 Example (cont d) Existing documents that must be retained Plaintiff s personnel file and all documents concerning her employment All documents relating to the particular position at issue including job description, job posting, documents reflecting decision-making process Joe Smith s personnel file and all documents concerning his employment Personnel file and documents concerning employment of other contenders for the position Personnel files of decision-makers Promotions policies 30 of 37

31 Example (cont d) Ongoing documents to be maintained On a going forward basis, documents created relating to the employment of plaintiff and Joe Smith s relating to plaintiff and Joe Smith Additional documents that might need to be retained or that you want to retain Documents reflecting gender make-up of the accounting department Documents relating to other promotions within the department, particularly if women promoted 31 of 37

32 Who May Have Relevant Documents? Supervisors (up through chain of command) Plaintiff (check work area and computer) Co-workers Human Resources Compensation, benefits, payroll, accounting Medical 32 of 37

33 E-Discovery 33 of 37

34 E-Discovery The Changing Landscape Electronic methods of collecting and storing data are prevalent 70% of corporate records stored electronically and 30% never printed Changes to Federal Rules of Civil Procedure effective 12/01/06 Highly publicized opinion of Zubulake v. UBS Warburg highlights E-discovery is plaintiff s best source of smoking gun also may be helpful to employer 34 of 37

35 Potential E-Discovery Issues Storing electronic data for basic document retention purposes and for litigation Locating relevant electronic data accessible v. inaccessible Preserving electronic data Reviewing electronic data for relevance and privilege Producing electronic data format and cost 35 of 37

36 Smoking Gun s Regarding our company s document retention policy: If [it s] destroyed in the course of normal policy and litigation is filed the next day, that's great.... We followed our own policy and whatever there was that might have been of interest to somebody is gone and irretrievable. In response to a document provided by one of its authors to the CEO of a division of a multi-national company: This is absolute dynamite, not at all what I expected and needs to be destroyed. 36 of 37

37 Question & Answer Session Have a question for the speaker? Press star and then 1 on your phone to enter the queue. If, during the Q&A, your question has been answered, or you wish to remove yourself form the queue, press star and then 1. The moderator will open your line when it is your turn to speak. For more information regarding Business Management Daily s newsletters, forums, webinars and special reports, visit: We d love your feedback regarding the conference and other topics you d like to hear about! Contact Heather Rice at: hrice@businessmanagementdaily.com. Thank you for participating! 37 of 37

38 Other resources HR Specialist: Employment Law newsletter. Plain-English and actionable employment-law advice that helps you keep your organization in compliance and out of court. Learn lessons from recent court rulings, read about happenings at the EEOC, DOL and IRS, and find answers to your questions in our Mailbag Q&A column. Two FREE bonuses when you subscribe. Eight-page monthly newsletter. $97/year. HR Specialist: Compensation & Benefits newsletter. In-depth advice for HR professionals focused on improving their compensation and benefits programs to make their organization an employer of choice. Two FREE bonuses when you subscribe. Eight-page monthly newsletter. $97/ year. To learn or subscribe go to or call (800) of 37

39 Personnel Records: What to Keep, What to Toss Presented By: Joseph L. Beachboard