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. §
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.
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