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RECORDS RETENTION Alyssa Martin NDSBA. DISCLAIMER The guidance in this presentation are for the purpose of providing information to business managers.

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Presentation on theme: "RECORDS RETENTION Alyssa Martin NDSBA. DISCLAIMER The guidance in this presentation are for the purpose of providing information to business managers."— Presentation transcript:

1 RECORDS RETENTION Alyssa Martin NDSBA

2 DISCLAIMER The guidance in this presentation are for the purpose of providing information to business managers. Nothing contained herein should be construed as legal advice or interpreted as a replacement for competent legal advice or other such consultation.

3 CHANGE TO LAW... THE OLD 21-06-05. Documents which may be destroyed - When. After the documents have been offered to the state archivist for preservation as archival resources, the business manager of a school district may destroy, by any suitable means determined by the school board, its records after the records become five years old except the following must be retained as permanent records of the school district: 1. School board proceedings. 2. Receipt and expenditure journals. 3. Payroll records.

4 CHANGE TO LAW... THE OLD NDCC 21-06-06. Procedure for destruction of documents The school board of any school district desiring to destroy any documents under section 21-06-05, at its first meeting in January of each year, shall procure from the business manager of the school district a list of those documents paid more than five years prior to that time and against which the period within which an action might be commenced to determine the validity of such documents has expired. The list must contain a full statement and description of the documents to be destroyed, and the school board shall check the documents with the list. If the list is correct, the school board by resolution shall order the documents destroyed and in the resolution shall provide the manner of destruction. The list must be filed in the office of the business manager of the school district and retained as a permanent record.

5 CHANGES TO LAW... THE NEW 15.1-07-25.2. School district records - Retention. 1. A school district shall permanently retain the minutes of each school board meeting. 2. Unless otherwise provided by law, a school district shall retain payroll records and records of revenues and expenditures for a period of five years. 3. A school district may consult with the state archivist before disposing of records in order to determine whether the records may have any archival value.

6 RESEARCHING A RETENTION DEADLINE -Does NDCC 15.1-07-25.2 apply? -Does a statute of limitations apply? See NDCC Ch. 28-01 -Is there any other state or federal law that applies?  See ND ITD Records Retention Schedule  See Records Retention Research Document  See SHRM Federal Records Retention Guide -If no to all the above questions, what is best practice?

7 NDSBA’S NEW RECORD RETENTION SCHEDULE We need your input... What’s missing? Within existing categories What new categories are needed Are there recommendations inconsistent with practice? What’s confusing? Is there conflicting duplication?

8 EXCEPTIONS TO NDSBA RETENTION RECOMMENDATIONS NDCC 15.1-17-03 If a teacher believes that any document in the teacher's personnel file, other than a formal performance evaluation, is inappropriate or inaccurate, the teacher may request that the file be reviewed by the principal of the school or by the administrator if the school is a state institution that provides elementary and secondary education to its students. If a teacher employed by a school district is dissatisfied with the outcome of the initial review, the teacher is entitled to have the file reviewed, upon written request, by the school district superintendent. If a teacher employed by a school district is dissatisfied with the outcome of the superintendent's review, the teacher is entitled to have the file reviewed, upon written request, by the school board.

9 EXCEPTIONS TO NDSBA RETENTION RECOMMENDATIONS 34 CFR 99.20 If a parent or eligible student believes the education records relating to the student contain information that is inaccurate, misleading, or in violation of the student's rights of privacy, he or she may ask the educational agency or institution to amend the record. 34 CFR 300.624 (a) The public agency must inform parents when personally identifiable information collected, maintained, or used under this part is no longer needed to provide educational services to the child.(a) (b) The information must be destroyed at the request of the parents. However, a permanent record of a student's name, address, and phone number, his or her grades, attendance record, classes attended, grade level completed, and year completed may be maintained without time limitation.(b)

10 EXCEPTIONS TO NDSBA RETENTION RECOMMENDATIONS Litigation holds A “litigation hold” on should be placed on documents (including electronic documents such as email) when litigation is “reasonably foreseeable.” Below are indicators that a hold is required: a. A formal complaint, subpoena, or notification of a lawsuit is received. b. Litigation is threatened. c. A regulatory or governmental body (e.g., OCR) starts an investigation. d. An attorney requests facts related to an incident or dispute. e. An injury occurs.

11 WHAT IS A PAYROLL RECORD? Not defined by law—each school district could develop its own definition NDSBA’s definition (Policy ABCD): Payroll record is defined as documents containing the following: Time and day of week when employee's workweek begins; Hours worked each day; Total hours worked each workweek ; Basis on which employee's wages are paid (e.g., "$9 per hour," "$440 a week," "piecework"); Regular hourly pay rate; Total daily or weekly straight-time earnings; Total overtime earnings for the workweek; All additions to or deductions from the employee's wages; Total wages paid each pay period; Date of payment and the pay period covered by the payment Just because you define an item as a payroll record does not mean that you should automatically retain it for five years.

12 QUESTIONS CONCERNING THE NEW LAW NDPERS asked for a record from 20 years ago... If we are following the new law, how do we respond to the PERS request? - Response: Per NDCC15.1-07-25.2, our district retains all expenditure records for five years. All other records are retained in accordance with our records retention schedule, which is based on state and federal law and ND ITD guidelines. We would be happy to update our schedule if you provide the law under which we must retain the record you are requesting for a longer duration. Per state law, we are not required to produce a record that does not exist (NDCC 44-04-18 (4)) and the record you are requesting does not exist as it was destroyed in accordance with our retention schedule. -Assumes that your district has a retention schedule... If you don’t have one, implement one: http://policy.ndsba.org/?page_id=4185http://policy.ndsba.org/?page_id=4185

13 QUESTIONS (CONT.) How long should we retain W2s, 1099s, and W4s? 13 years after CFY Legal reference: 26 USC 6501 and 26 USC 6502 https://www.law.cornell.edu/uscode/text/26/6501

14 QUESTIONS (CONT.) What should be surrendered to the state archives? See list: http://policy.ndsba.org/?page_id=4185 http://policy.ndsba.org/?page_id=4185 What are considered board minutes for purposes of permanent retention? Plain meaning of the law: NDCC15.1-07-25.2. School district records - Retention. 1. A school district shall permanently retain the minutes of each school board meeting. See state law on what must be included in minutes: NDCC 44-04-21 (2)

15 QUESTIONS (CONT.) Personnel Files -What do we keep in them? -How long do we keep them? NDSBA recommends 50 years for “employment history records” Resources: SHRM Federal Records Retention Recommendations NDSBA Records Retention Schedule Lily Ledbetter Act

16 QUESTIONS (CONT.) How long should a school district retain emails? - Check with your provider to determine how long it is capable of retaining emails; set this as your retention deadline -Develop a system for flagging and retaining emails with content covered by NDCC 15.1-07-25.2 and emails that may be needed in the event of litigation

17 QUESTIONS (CONT.) What are retention recommendations for student education records? -Anything in PowerSchool is retained permanently -See NDSBA policy FGA: Student education records shall be reviewed annually and any records unnecessary for progression to the next grade level, not needed for college entrance purposes, not needed for extracurricular participation, not needed for disciplinary purposes, and records that are not part of the permanent record will be shredded or destroyed. Exceptions apply for any content that may reasonably be related to litigation or anticipated litigation (retain for six years after a student turns eighteen), bullying reports (retain in accordance with policy ACEA), concussion documentation (retain in accordance with policy FCAF), executive session tapes (retain for at least six months), PowerSchool records, and special education records (retain in accordance with the Individuals with Disabilities Education Act).

18 QUESTIONS (CONT.) How do I go about transferring records in hard copy to an electronic format? Political subdivisions are required to follow ND ITD’s Electronic Records Management Guidelines: https://www.nd.gov/itd/standards/electronic-records-management- guidelineshttps://www.nd.gov/itd/standards/electronic-records-management- guidelines See NDCC 54-46.1-02.1 and 54-46.1-03

19 FOLLOW-UP ANSWERS FROM HR CONFERENCE FLSA opinions on when coaching is exempt: https://www.dol.gov/whd/opinion/FLSA/2009/2009_01_15_10_FLSA.pdf https://www.dol.gov/whd/opinion/FLSA/2009/2009_01_15_10_FLSA.pdf All federal wage and hour opinions: https://www.dol.gov/whd/opinion/flsa.htmhttps://www.dol.gov/whd/opinion/flsa.htm How to cut teachers’ checks over the summer (if electing 12 month pay period): TFFR Guide, p. 33: http://www.nd.gov/rio/tffr/publications/EmployerGuide.pdfhttp://www.nd.gov/rio/tffr/publications/EmployerGuide.pdf


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