Important Aspects for Employer Document Retention Plans according to SHRM-SCP
In the current legal landscape, employers face an increasing number of common-law claims, such as contract disputes, tort allegations, and fraud accusations. To effectively manage risk and protect themselves in potential future disputes, employers should consider additional factors beyond mandatory legal requirements when creating record retention schedules.
One crucial factor to consider is the statute of limitations for common-law claims. Employers should retain relevant records longer than the minimum legal retention periods to cover the potential statute of limitations for related common-law claims, which often can extend beyond statutory requirements. This helps prevent inadvertent destruction of records that might be critical evidence in lawsuits such as wrongful termination, discrimination, or wage and hour disputes.
Another important consideration is broader federal and contractual requirements. While many federal laws like the EEOC require only one year of retention for personnel records, best practices suggest keeping applications, resumes, and related documentation for at least two years to provide a buffer for claims under laws like the Age Discrimination in Employment Act or the Americans with Disabilities Act, which have nuanced retention rules or extended protections.
Industry-specific and OSHA records also warrant extended retention. For example, OSHA requires injury and illness records to be kept for five years, and employers should update stored records if new information arises during that period. Such extended retention ensures compliance and readiness for inspections or claims related to workplace safety.
Privacy and confidentiality considerations are equally important. When retaining records that may contain sensitive personal information, employers must plan for secure storage and controlled access. In some states like California, laws require redaction or removal of non-responsive personally identifiable information before disclosure, especially in union or public records requests.
To balance transparency and privacy, agencies and employers may consider advanced redaction tools (e.g., AI-assisted) followed by human review to handle varied media formats within retained records.
In summary, employers should align retention schedules not just with the shortest legal minimums but with the longest relevant statute of limitations and potential claims exposure. This approach helps maintain defensibility in legal disputes and ensures compliance with multi-jurisdictional requirements.
When setting record retention policies, employers should:
1. Identify all applicable statutes and common-law claim periods. 2. Retain records for the longest relevant period considering all laws and potential claims. 3. Securely store and manage sensitive information according to privacy laws. 4. Regularly audit and update retention policies to reflect legal and operational changes.
These considerations extend the basic legal mandates into a comprehensive, risk-managed record retention strategy. Employers who adopt this proactive, risk-aware approach are well-positioned to navigate the complexities of modern employment law.
[1] U.S. Equal Employment Opportunity Commission (EEOC). (n.d.). Retention of Records. Retrieved from https://www.eeoc.gov/employers/foia/foia_records_retention.cfm [2] Occupational Safety and Health Administration (OSHA). (n.d.). Recordkeeping and Reporting Requirements. Retrieved from https://www.osha.gov/laws-regs/regulations/standardnumber/1904 [3] U.S. Equal Employment Opportunity Commission (EEOC). (n.d.). Age Discrimination in Employment Act. Retrieved from https://www.eeoc.gov/laws/statutes/adea.cfm [4] California Department of Fair Employment and Housing (DFEH). (n.d.). Public Records Act. Retrieved from https://www.dfeh.ca.gov/public-records-act/
- To protect their business and safeguard potential careers affected by legal disputes, employers should not only follow mandatory legal requirements but also consider prolonged retention periods for records, especially for common-law claims like wrongful termination, discrimination, or wage and hour disputes, which may have statutes of limitation that surpass the minimum legal retention periods.
- In order to ensure compliance with various federal and contractual requirements, employers may find it beneficial to retain applications, resumes, and related documents for a duration beyond the statutory retention periods specified by laws such as the Age Discrimination in Employment Act or the Americans with Disabilities Act, which carry nuanced retention rules or extended protections.
