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Record-keeping: It's Time to Double-Check Your Procedures

By Matthew C. Lonergan

In an era where employment laws continue to evolve, an important, but often overlooked, aspect of legal compliance is an employer's record-keeping procedures. It is not unusual for an employer that is being investigated by a governmental agency in charge of enforcing an employment statute to run afoul of the record-keeping requirements. Sometimes a record-keeping violation can lead an investigator down the path of discovering significant compliance issues not directly connected to the original complaint; most notably, in failure-to-hire or promotion cases.

In addition to the federal statutes reviewed below, employers should check their state law requirements for record-retention provisions and the statute of limitations, including deadlines for tort-type claims, which are increasingly prevalent in today's employment litigation. It should also be noted that where an employer discovers there are federal or state laws specifying different record-retention periods for the same records, the employer should comply with the longer period under either law. As a practical matter, record-retention requirements are extended when records are involved in either administrative or court proceedings, in which case the employer should retain those records for the duration of the litigation until final resolution, including the running of the time limits applicable for appeal. The record-keeping retention provisions reviewed below relate to laws that are largely applicable to the most significant number of employers. Additional record-keeping duties may apply, depending upon specific state law or regulations, such as safety procedures or other specifications applying to particular industries or hiring certain types of workers.

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