Employee Record Retention and Destruction

Kallie Smith

January 2013

The beginning of a calendar year is a good time for employers to review their document retention status. All employers should establish and maintain a clear record retention policy identifying the location of records, a reasonable schedule of retention and destruction, and a records administrator.

Documents related to employee recruitment and selection, such as job advertisements, resumes, job inquiries and records of refusal to hire should generally be retained for one year. 29 U.S.C. § 626; 29 C.F.R. § 1627.3 (Age Discrimination in Employment Act). Once an employee is hired, EEOC regulations require employers to keep all personnel or employment records for one year. If an employee is involuntarily terminated, his/her personnel records must be retained for one year from the date of termination. 42 U.S.C. §2000e-8(c); 29 C.F.R. §1602.14 (Title VII of the Civil Rights Act of 1964). Separate personnel files should be maintained for each employee.

Employers must maintain pay and promotion records for a period of three years, and must keep all records that would explain the basis for employee wages for a period of two years. (EEOC Recordkeeping Requirements). Additionally, employers must keep a copy of all employee benefit plans and merit systems while in effect and for at least one year after termination of the plan.

Documents related to employee leaves of absence under the Family Medical Leave Act (FMLA) should be retained for three years. 29 U.S.C. § 2626; 29 C.F.R. § 825.500. Remember to keep medical records confidential and separate from the employee’s personnel file. I-9 Employment Eligibility Verification forms should be retained for three years from the date the record was made or a personnel action was taken, whichever is later. 8 U.S.C. §1324a(b)(3) (Immigration and Nationality Act). I-9 forms should also be stored securely and separately from the employee’s personnel file.

This touches on a few, but not all, federal statutes governing document retention. These are general guidelines only, and exceptions may apply. Once an employer is aware of a potential lawsuit or charge of discrimination, employers cannot destroy records related to the subject matter of the complaint for any reason until complete resolution of the matter has been reached, including any appeals.

Contact Mark McCarty or Kallie Smith if you need more information on employee record retention and destruction policies and practices.