Personnel Record Retention and Investigations: An HR Minefield

Keep Investigation Data Separate From Personnel Record Retention

And finally, here are documents related to investigations. A lot of or all of you should have some form of a harassment policy or other policy that incorporates a complaint procedure where employees can bring complaints of discriminatory treatment to the HR department or to supervisors and that those complaints will be investigated.

Documents related to these investigations or documents related to EEOC charges must be part of any personnel record retention until the charge or that particular issue is resolved. Now, during these investigations, it’s common to want to protect the employee’s privacy. You do want to do that to the greatest extent possible. However, you can never guarantee complete privacy.

If you need to figure out whether John was harassing Jane, you’re not typically going to be able to keep Jane’s identity completely confidential. Now, you should try to assure the employee that you’re going to be as sensitive and cognizant as possible of their privacy. But you should never make an absolute guarantee of privacy. But in personnel record retention, these records nevertheless need to be kept separate from the employee’s personnel file.

Why? The number one reason there, the potential for retaliation claim. If you have a supervisor who wants to promote an employee and Jane is on his list of possible employees who could be promoted, and he goes through the files kept in personnel record retention and sees that Jane, three years earlier, had filed a harassment complaint against his good friend John. All of a sudden, if Jane doesn’t get that job, she may have a decent bit of evidence there to support a retaliation claim.

That’s important because retaliation claims are the hot area in discrimination law. And that’s from several – well, a substantial portion of claims these days, at least in my experience are turning from traditional discrimination type actions into retaliation and harassment type of action.

When dealing with personnel record retention and investigations, any information not protected by the attorney-client privilege or the work product doctrine maybe subject to disclosure in subsequent litigations. So, just keep that in mind while you’re producing various work products in here. You want to make sure that anything that you produce during the investigation doesn’t put you or put the company in a bad light later on during litigation.

You need to limit or eliminate supervisor or departmental files. You don’t want individual supervisors or individual departments keeping records that HR doesn’t know about. All personnel record retention needs to be centralized in one place so that you know what’s in there, you know what’s coming, and you know what’s going. And you don’t get surprised by things that might just be sitting out there like a land mine just waiting for someone to trip over one day.

Personnel files should not be accessed by people with no need to know. We’ve talked here at length why you don’t want supervisors or other people to be seeing different things that they don’t need to know about to make any of their decisions.

So, you need to make sure that you’re taking steps to protect these. Literally, keeping them under lock in key or if they’re kept electronically, they need to be sufficiently password protected so that only selected personnel have access to personnel record retention information.