When it comes to retention of personnel files, employers should be mindful of their obligations under 29 C.F.R. § 1602.14 to maintain specific personnel and employment records. This regulation mandates that any personnel or employment record made or kept by an employer, including but not limited to requests for reasonable accommodation, application forms, and records related to hiring, promotion, demotion, transfer, lay-off, or termination, must be preserved for a period of one year from the date of the record's creation or the personnel action involved, whichever is later. If an employee is fired or laid off, such records must be retained for one year from the date of termination. Additionally, if an employee files a charge of discrimination or an action is brought against an employer under Title VII, the ADA, or GINA, the employer must preserve all relevant personnel records until the final disposition of the charge or action.

Employers should view Section 1602.14’s recordkeeping requirements as the “floor” for employee personnel files. This is because such records may be useful for internal business processes such as evaluating employee performance, or such records may be useful in the defense of an employment discrimination or other lawsuits in which an employee’s performance is at issue and the statute of limitations for such lawsuits often exceed the recordkeeping requirements. In addition, employers should be mindful of any state recordkeeping laws that also mandate the retention of personnel files since the period for retention may be different. Of course, if an employer anticipates litigation and a personnel file is relevant evidence, an attorney should be retained, and such files should be subjected to a legal hold process. Thus, when crafting policies to guide an organization’s information governance efforts, such as document retention and legal hold policies, employers should consider the manner that information assets are used by various stakeholders in the business as well as applicable recordkeeping laws and regulations. This allows organizations to utilize the records in a manner that maximizes their usefulness to an organization while minimizing costs and legal risk.

If your organization is seeking support with information governance, our team has solutions to assist clients in their efforts to maximize the usefulness of information assets while minimizing the cost and risk associated with their use. At CODISCOVR, we deliver client-focused, defensible, and solutions that are tailored to each organization’s specific needs. Reach out to Nicholas Berenato, Information Governance Principal, CODISCOVR. Nick is an attorney that focuses his practice on information governance and electronic discovery in the construction, education, financial services, antitrust, government investigations, white-collar, insurance, and health care and life sciences industries.