Starting August 7 of this year, the POWR Act requires employers to maintain personnel and employment records for at least five years. The five-year mark starts from the date the employer made or received the record or the date of the personnel action about which the record relates or of the final disposition of a charge of discrimination or related action.
The POWR Act defines personnel and employment records broadly. They include the following:
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Requests for accommodations
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Employee complaints of discriminatory or unfair employment practices, whether written or oral
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Application forms submitted by applicants for employment
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Other records related to hiring, promotion, demotion, transfer, layoff, termination, rates of pay or other terms of compensation, and an employee’s selection for training or apprenticeship, as well as records of training provided to or facilitated for employees
The POWR Act also requires employers to create an “accurate and designated repository” to maintain records regarding both written and oral complaints of discriminatory behavior or unfair employment practices. The records maintained include each of the following:
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The date of the complaint
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The identity of the complaining party, if the complaint was not made anonymously
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The identity of the alleged perpetrator
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The substance of the complaint
So, look at your current recordkeeping system and make the necessary changes now. If you don’t have something that meets the new requirements, you need to create a system to ensure the correct personnel and employment records (as defined above) are maintained for at least five years. You also need an accurate, designated, confidential, and secure repository of all written and oral complaints of discriminatory behavior or unfair employment practices. Ideally, the repository should be easily searchable in the event you are asked to retrieve data from your repository because of a claim.
Failure to have a recordkeeping system in compliance with the POWR Act could result in significant negative consequences in the event an employer is faced with a charge of discrimination. You can learn more about the POWR Act and unlawful harassment in the workplace in this Employers Council whitepaper. If you have any questions about the new recordkeeping requirements or the POWR Act in general, please contact us.