Presented by Max Muller. Records Retention and Destruction for Human Resources

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1 Presented by Max Muller Records Retention and Destruction for Human Resources

2 Today s Agenda Be able to analyze your current document retention policies and procedures to ensure they re in compliance with state and federal law.

3 4 Reasons Every Organization Needs a Document Retention Policy 1. You ll be able to find documents faster. 2. You ll reduce monetary and storage costs. 3. Laws and regulations require retention. 4. Spoliation, or a failure to preserve evidence

4 Documents should be retained if they are: Necessary to the conduct of business 1.Required to be kept by statute 2.or regulation Relevant to pending investigations 3.or litigation

5 5 Elements 1. Identify the types of documents to retain. 2. Specify the retention period. 3. Identify how documents will be destroyed. 4. Specify circumstances for destruction. 5. Document compliance with the retention schedule.

6 What Is a Document? The bits and bytes that make up an are also a document.

7 Analyze Current Practices

8 Analyze Current Practices How are you categorizing digital documents?

9 Cataloging and Indexing Alphabetic Subject Matter Numeric Geographic Be consistent.

10 Title VII ADA GINA 29 CFR 1602 Retain personnel records for 1 year from the date of creation or action taken. ADEA Retention Laws

applicant is older than 40, then 2 years.

11 Retention Laws Job Advertisements and Postings Retain for 1 year. Résumés and Applications Retain for 1 year, unless applicant is older than 40, then 2 years. Employment Action Records Retain for 1 year, unless related to health and safety, then 3 years.

12 Retention Laws Wage and Hour Records Retain employment and earnings records for 2 years and payroll records for 3 years. Retain for 4 years. Tax Records Retirement and Pension Records Retain for 6 years.

13 Retention Laws Retain for 3 years. Retain for 5 years. Leave Records I-9 Forms Retain for 3 years after employment begins or 1 year following termination. Job-Related Illness and Injury Records Retain results of exposure to toxic substances or blood-borne pathogens through employment plus 30 years.

14 Health Insurance Portability and Accountability Act (HIPAA) Retain documents for 6 years. Retain documents for 2 years after a patient s death.

15 Medicare Conditions of Participation All hospitals must maintain records for 5 years. Also consider your state s statute of limitations.

16 California v. Greenwood Discarded items become part of the public domain. Anyone can access your garbage.

17 Privacy Rights HIPAA Economic Espionage Act of 1996 Gramm-Leach-Bliley Act of 1999

18 Privacy Rights Sarbanes-Oxley Act of 2002 Document alteration or destruction Mandatory document retention Obstruction of justice Fair Credit Reporting Act of 2001

19 FACTA Disposal Rule Requires disposal practices to prevent unauthorized access to consumer information Some states have additional laws. Financial penalties can be high. Examples: ² Mortgage company ² Wholesale club

20 Electronic Shredding Low Shred 1 pass of random data Medium Shred 1 pass of binary, 1 pass of random data High Shred 7 binary passes

21 NAID Guidelines 1. Maintain employee files. 2. Have written policies. 3. Protocol for visits 4. Provide destruction receipts. 5. Secured in-field containers 6. Supervised media destruction 7. Secure unattended material. 8. Secure media during transfer. 9. Proof of vehicle inspections

22 NAID Guidelines 10. Locked vehicles 11. Drivers have 2-way radios. 12. Secured destruction area 13. Monitored alarm systems 14. Closed-circuit cameras 15. Procedure for transfers 16. Specific destruction equipment 17. Legally registered company 18. General liability insurance

23 Additional Guidelines Your company should be named on the insurance policy. Who is the insurance carrier? How much is their deductible?

24 Fidelity Surety Bonds Contract between you, the service provider, and the bonding company Protect the insured against loss. Guarantees performance by the principal

25 Clauses The service provider protects you from all liabilities. Ensure that all of the service provider s employees have signed a nondisclosure agreement. Negative option to renew ² Try to negotiate a positive option to renew.

26 10 Reasons You Should Have a Document Destruction Policy 1. To protect your employees 2. It s the law.

27 10 Reasons You Should Have a Document Destruction Policy 3. Loss of trade secrets 4. To protect your customers

28 10 Reasons You Should Have a Document Destruction Policy 5. Disgruntled employees 6. The public domain issue

29 10 Reasons You Should Have a Document Destruction Policy 7. The 5 o clock news 8. The state s attorney general

30 10 Reasons You Should Have a Document Destruction Policy 9. It s the green thing to do. 10. You fill in the blank.

31 Spoliation The finder of fact will review evidence in a strong light against you. Zubulake v. UBS Warburg

32 E-Records Retain if there is anticipation of litigation.

33 Litigation Hold Policies Relevant in the action Reasonably will lead to evidence Reasonably likely to be requested The subject of a pending request

34 Digital Files Digital documents are subject to discovery requests. You are still liable if the data is lost. A good policy ensures electronic data is properly maintained.

35 1. Pre-litigation planning 2. Involve the IT department. 3. Establish accountability for enforcement. 4. Educate employees about electronic communication. 5. Teach employees how to manage electronic data. 10 Tips for Avoiding Spoliation Problems

36 6. Make sure scheduled items get destroyed. 7. Separate personal and business Be prepared to enforce litigation hold policies. 9. Involve IT in litigation hold. 10. Reexamine your policy every year. 10 Tips for Avoiding Spoliation Problems

37 Define document. State reasons. Identify authority. Have retention charts. Retain for the longest term. Identify staff with access. Don t mix digital documents in storage. Summary

Record Management & Retention Policy

Record Management & Retention Policy POLICY TYPE: Corporate Divisional EFFECTIVE DATE: INITIAL APPROVAL DATE: NEXT REVIEW DATE: POLICY NUMBER: May 15, 2010 May - 2010 March 2015 REVISION APPROVAL DATE: 5/10, 3/11, 5/12, 9/13, 4/14, 11/14