Though it is not required by law, the best practice for a company in New York is to retain its employees’ personnel files for the length of the employee’s employment plus five years.
This is the case, among other reasons, because an individual may file a lawsuit under the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 – 8-131 (the “NYCHRL”), for unlawful discriminatory practices in employment for up to three years after the alleged unlawful discriminatory practice, and because that three year period is tolled upon the filing of a complaint with the New York City Commission on Human Rights or the State Division of Human Rights and during the pendency of such a complaint and any court proceeding for review of the dismissal of such a complaint. N.Y.C. Admin. Code § 8-502(d). Such a complaint could well remain pending – and, as a result, the NYCHRL’s three-year limitations period could well be tolled — for at least two years.
A federal regulation issued under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”), under the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. (the “ADA”), and under the Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, 122 Stat. 881 (“GINA”) requires an employer to preserve all personnel or employment records it makes or keeps for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later. 29 U.S.C. § 1602.14. The personnel or employment records encompassed by this federal regulation include, but are not necessarily limited to, requests for reasonable accommodation, application forms submitted by applicants and other records having to do with hiring, promotion, demotion, transfer, layoff or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship. 29 U.S.C. § 1602.14.
Similarly, a regulation issued under the federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the “ADEA”) requires an employer to keep personnel or employment records it makes, obtains, or uses for a period of one year from the date of the personnel action to which any records relate. 29 U.S.C. § 1627.3(b). The personnel or employment records covered by this federal regulation include, among other things, (i) records related to job applications, resumes, or any other form of employment inquiry whenever submitted to the employer in response to the employer’s advertisement or other notice of existing or anticipated job openings, including records pertaining to the failure or refusal to hire any individual, and (ii) records related to promotion, demotion, transfer, selection for training, layoff, recall, or discharge of any employee. 29 U.S.C. § 1627.3(b)(1).
For further discussion of the New York City Human Rights Law, Title VII, the ADA, GINA, and the ADEA, see here.
If your company needs assistance or guidance on a labor or employment law issue and your company is located in the New York City area, call Attorney David S. Rich at (212) 209-3972.