Record Retention Policies — An Essential for Employers

April 2nd, 2008

These days with more and more type of records that a business creates and which are recognized by courts, businesses need an effective records retention policy as part of their overall policy and procedure strategy.  Companies need to ensure compliance with both state and federal laws that govern a company’s records.

For instance, the Sarbanes-Oxley Act of 2002 created record retention requirements that apply to all companies, both publicly traded and privately held.  Section 802 which provides that it is a crime for someone to intentionally destroy, alter, mutilate, conceal, cover up or falsify any records, documents or tangible objects that are involved in (or could be involved in) a U.S. government investigation or prosecution of any matter or in a Chapter 11 bankruptcy filing.

A records retention program can protect businesses in litigation and disputes that arise during the course of business.  These programs help ensure compliance with federal and state laws and regulations.  Additionally, evidence of a clear and consistently enforced records retention program, provided it is enacted for valid purposes, will go a long way to convince courts that the destruction was reasonable and will generally provide a “safe harbor” under current rules of civil procedure.

However, while it is important to keep clutter to a minimum, a company can get into difficulties by tossing the wrong paper or deleting an important e-mail.  It is important to have all relevant documents during a lawsuit.  Not having a document can mean the difference between winning and losing in a lawsuit.  A judge or jury may be permitted to conclude that the document contained information detrimental a business should they not be able to product it.

Any policy a company creates should cover both hard copy documents and electronic documents.  Now that electronic discovery has been recognized in law suits, companies need to ensure they review their electronic records with the same careful attention as other documents.  Electronic records include records stored in email; on employee’s voicemail, computers, PDAs, cell phones, external drives, CDs, and DVDs; and on company networks and backup systems.

A comprehensive policy should cover how long to keep a document, when and how to store the document, and how to dispose of the document, will depend on the type of document.  It should also include details on how the destruction of documents should be handled.  Things to consider in this should include how electronic records will be destroyed as well how confidential information will be destroyed.  Additionally, the policy should include a procedure that preserves all records once a company is reasonably anticipates litigation. 

It is important for the success of the policy that employees be trained and be held accountable for compliance.  Additionally, a periodic audit should be held to ensure that the appropriate records are being destroyed. 

Due to the magnitude of legal requirements, as well as the specific needs of each company, it is advisable to consult legal counsel before implementing a tailored records retention policy.  In addition, businesses should consider any industry standards that may affect the holding period of records due to unusual legal circumstances.

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