Responsible recordkeeping practices begin long before a job candidate walks through the door and extend long after an employee leaves an employer, according to two attorneys who recently presented a BLR audio conference.
Allen Kato of Fenwick and West LLP and Trey Wichmann of Winston and Strawn LLP walked listeners through the host of laws and regulations that mandate employers retain records.
Kato said that litigation is the ultimate test of the adequacy of an employer's recordkeeping practices. He noted some trouble spots employers find in litigation, including when information is omitted in some records, the records include incorrect information, or worse, a "smoking gun" of bias, or recordkeeping is sloppy.
Kato recommended that in general, employers should retain key personnel records for the duration of an employee's employment plus 5 years.
Wichmann said that good recordkeeping practices begin with hiring records. Employers should ensure that job descriptions and job postings identify the essential functions of the job and establish the minimum qualifications of the job, according to Wichmann.
Job applications and interview notes should hold relevant information for the basis of hiring decisions and should document the valid reasons for selecting and rejecting applicants, he said.
A best practice for job applications is to require a signed application from all candidates, he said. He recommended that applications include a statement that employment will be at-will (that is, either the employee or the employer may terminate the employment relationship at any time and for any reason other than an illegal reason), a signature from the applicant that all of the information the applicant supplies is true, an authorization to check references, and an arbitration agreement.
He suggested that employers should keep applications from non-hires at least 2 years and retain applications from hires the length of employment plus at least 2 years.
Wichmann offered these tips for interviews:
- Ask only job-related questions
- Avoid statements that undermine the at-will status.
- Ensure interview notes are legible and that they avoid discriminatory information
- Request specific examples of good work and mistakes.
- Ask why he or she left previous employer.
If an employer extends an offer to an applicant, the letter should establish the terms and conditions of employment and confirm the at-will status of the employee, according to Wichmann.
Kato reminded employers that they must wait until after they have made a documented job offer to an individual before requesting a physical exam. He also said state privacy laws require employers to protect medical records from unauthorized access.
Kato also recommended the retention of other hiring records, such as a written employee invention assignment agreement, an acknowledgment of receipt of employee handbook upon hire and of later revisions of the handbook, and confirmation of at-will employment by receipt of handbook.
The Immigration Reform and Control Act requires employers to retain Employment Eligibility forms (INS Form I-9) for three years after the worker is hired or one year after termination, whichever is later.
Wichmann said records related to wage and hours should be kept at least 4 years. In addition, records required to be kept under the Employee Retirement Income Security Act (ERISA) must be retained for 6 years.
Allen said employers should keep medical records, such as those related to ADA reasonable accommodation, workers' compensation, OSHA compliance, and the Family and Medical Leave Act, in a separate file and in a locked location to protect from unauthorized access.
When it comes to personnel files, a mistake employers make is to include only negative information about an employee, according to Wichmann. He said it is important for employers to retain a balanced personnel file with both negative and positive information, such as notices of rewards, warnings, attendance record, and training records.
It is also important for employers to document thoroughly promotions and the reasons for promotions, he said.
A reduction in force ( RIF ) also requires documentation, such as notices. Employers should also document the selection criteria for layoff and retain records related to the adverse-impact analysis, Wichmann said.
He said that employers should establish selection criteria for RIF around business needs, document the reasons for the RIF, and perform an analysis to see if there are any red flags for discrimination based on race, gender, or age.
Without a doubt, recordkeeping requirements are extensive. For more highlights of some of the more important recordkeeping requirements, visit HR.BLR.com's legal analysis on records.
Purchase a CD copy of the HR Recordkeeping audio conference.