Personnel Records Critical in Complaints
Byline: Jeff Burgess Bureau of Labor and Industries
Oregon law requires employers to keep personnel records for 60 days, and to keep payroll records for two years (three years under federal law).
But that does not mean it is a good idea to purge those documents as soon as you can lawfully do so. Good records are your primary defense to a wage and hour claim or a civil rights complaint - and those can be filed well after the requirement to keep those records has passed. Wage claims in Oregon may be filed at any time within six years from the date the wages were due. Discrimination claims may be filed at any time within one year of the alleged unlawful employment practice.
Oregon law places the full responsibility for keeping and maintaining certain records on the employer. When an employer fails to keep those records, a court or administrative law judge will rely on the claimant's evidence, even if it is only approximate, to resolve the matter.
Discarding the records that would have substantiated the payment of disputed wages, or proved that there was a legitimate, non-discriminatory basis for an employment action, deprives you of your best, most concrete defense.
For recordkeeping purposes, documents may include records other than paper, such as e-mail and other electronic information, voicemail and tape recordings, photographs and other physical evidence that may be useful for a judge or jury far down the road.
If an employer is constrained by records storage limitations, consider preserving the record in an alternative format such as scanning and storing the document digitally. A digital reproduction may be just as effective as an original if it can be authenticated.
Another critical principle of recordkeeping is to make a good record in the first place. A contemporaneous record is better than one made weeks after the fact.
Remember that the document may not get to a judge or jury for several years after the document is created, so be sure and include the time of day, if relevant, and the full date, including day, month and year on the record. Make the record clear, concise, consistent, specific and objective. Use exact quotations when appropriate rather than subjective characterizations of a conversation. Be sure not to create a "smoking gun" that would suggest a discriminatory motive for the action taken. …