1. What To Leave In, What to Take Out? Legal Issues in Employment Record Keeping Sheila Gladstone Attorney at Law 512.372.8900 sglad@earthlink.net

2. What’s your preferred method?

3. Federal Retention Requirements Title VII, ADEA, ADA1 year or until current charge resolved Payroll Records (FLSA, EPA, ADEA) 3 years Payroll Backup (time cards, explanations) 2 years I-9 FormsLater of 3 years from date of hire or 1 year of termination FMLA3 years OFCCP (Affirmative Action)No legal requirement – recommend 7 years

4. When all else fails... Many use “seven-year” rule to cover all the bases No destruction after possible legal claim –Crime of exfoliation –Demand letter, charge, claim notice –Be careful to rescue e-mails from automatically deleting files Often, e-mails very important to future defense – when in doubt, save to file!!!

5. Where to keep the records? Medical Records – Separate, Secure File I-9’s – One alphabetical /chronological file Child support/levies – Payroll Supervisor’s working file – turn in at transfer or end of employment – STILL AN OPEN RECORD Attorney Communications – confidential desk file of executive Investigations – separate confidential – keep as long as personnel file Training – in personnel file

6. Electronic Records Issues PDF becoming more acceptable Confidentiality rules still apply –Limit access –Don’t leave on screen –Caution in e-mailing Think “sealed envelope stamped CONFIDENTIAL” Electronic resumes –State policy of no acceptance without open position –Do not save unsolicited resumes

7. WE’RE FROM THE GOVERNMENT AND WE’RE HERE TO HELP YOU Get your posters up, take the bad stuff down Separate documents for easy viewing away from non-relevant documents Get the filing straight –Ex: no attorney-client docs or medical docs in personnel files Arrange for private, clean workspace Call a lawyer! (promotional message)

8. Information Requests NEVER hand over documents that have not been reviewed Don’t produce privileged documents If scope of request unclear, interpret narrowly, then expand if required Position statements: –Can and will be used against you in court of law –Review for both form and substance –Tell your story the way you want, then respond to specific requests