DEAR CARRIE: How long should an employer keep a paper trail on a problem employee before acting, and how long should the company hold onto the documents? — Paper Chase
DEAR PAPER: The answer isn’t straightforward because neither federal nor state laws mandate that employers keep disciplinary records on employees.
“As such, an employer is not legally bound to retain them for any period of time,” said Carmelo Grimaldi, a partner at Meltzer, Lippe, Goldstein & Breitstone in Mineola.
But best practices dictate what employers should do, Grimaldi said.
An employer should follow a “common sense” approach regarding document retention, Grimaldi said. For example, disciplinary documents should be retained in the employee’s personnel file for the length of employment, he said.
“Even if a warning was issued years ago, it nonetheless may still have relevance if, for example, the employee commits the same infraction,” he said.
And such records should be retained for a substantial period of time after employment ends — six years for example — in the event the employee files litigation against his or her employer after leaving the company. Also, if the employer is already involved in litigation regarding a specific employee, the employee’s documents should be retained as long as the litigation is active, he said.
In unionized situations, the use and retention of disciplinary documents and evaluations are often governed by collective-bargaining agreements, Grimaldi said. Some union agreements, for example, require the removal of disciplinary documents after a certain period, he said.
Finally, an employer should be consistent in its retention practices.
“If it wants to retain documents during the tenure of employment and six years thereafter, it should do so for everyone, unless a contractual obligation requires otherwise,” he said.
To make sure those records are accurate and believable, employers should document company-rule violations once they occur and make sure the employee knows.
“Disciplinary documentation distributed long after a problem occurs is sometimes challenged as a subterfuge for discrimination,” Grimaldi said.
It’s worth noting that some laws do address employee-records retention. Some employment-related documents, such as employment eligibility forms (I-9s) and payroll and timekeeping records, must be retained by an employer for a time set by statute, Grimaldi said.
When it comes to problem employees, having a written record is just as important.
“Such written documents will be useful when identifying to the employee unacceptable behavior and areas in need of improvement,” Grimaldi said. “ An employer will also be able to challenge any future claim that the employee was unaware of such misconduct.”
DEAR CARRIE: Many employers remain closed on the Friday after Thanksgiving to give their employees a long weekend. But my employer isn’t one of them. The company opens for half a day the Friday after. How does this work as far as employee’s pay is concerned? Are the employees entitled to the remaining four hours to make up a full eight-hour workday since they were present, willing and able to work a full day? And is it legal if the decision to open was made a day or two before? — Beef about Turkey
DEAR BEEF: If you are an hourly employee, the company has to pay you only for the hours you are scheduled to work. On the other hand, if you are an exempt employee the company cannot dock your pay for the partial day. Exempt employees’ pay can be docked only if they miss a full day for personal reasons.
As for the short notice, generally employers are free to set the work hours of their employees, unless child-labor provisions or a contract agreement come into play.
Go bit.ly/LIholidaze for more on exempt employees and holiday closings.