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Personnel File Retention Requirements–Title VII and ADA

Most American employers are subject to a number of federal statutes designed to prevent different forms of discrimination in the workplace. In addition to proscribing improper workplace practices, these laws provide enforcement mechanisms and means to compensate employees and applicants who are injured by employers who refuse to follow the laws.

To enhance enforcement efforts, these laws impose requirements upon covered employers to retain various employment records. This article summarizes the identical requirements of regulations implementing Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990 (ADA), with respect to records retention.

Pursuant to shared regulations implementing the records retention requirements of Title VII and the ADA, any personnel or employment record made or kept by an employer is to be preserved by the employer for one year from the time the record is made or from the time a related personnel action is taken, whichever is later. The regulations specify that the records that must be retained include, but are not necessarily limited to:

* Requests for reasonable accommodation

* Application forms submitted by applicants

* Records having to do with hiring, promotion, demotion, transfer, lay-off, or termination

* Rates of pay or other terms of compensation

* Selection for training or apprenticeship

The regulations also require that employers retain all personnel records for longer than one year if an employee of applicant has filed a discrimination charge against the employer. In such cases, the employer is to retain all “personnel records relevant to the charge” until after the final disposition of the charge.

The term “personnel records relevant to the charge,” means:

* Personnel or employment records relating to the aggrieved person

* Personnel or employment records relating to all other employees holding similar positions to that held by or sought by the employee or applicant

* Application forms or test papers completed by an unsuccessful applicant

* Application forms or test papers completed by all other candidates for the same position as that for which the unsuccessful applicant applied

The final disposition of a charge occurs when the statute of limitations runs for an aggrieved person to file a federal court action against the employer. It also occurs on the date on which any litigation brought by an employee or by the government against the employer is terminated.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.


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