Another consideration is collective agreements. My experience with
organizations in North America is that collective agreements oftentimes
will specify the retention period for various sorts of disciplinary
actions. Offenses will be categorized and the outcome (generally a type
of letter to be placed in the file) will determine the retention
period. These retentions can range from 30 days to several years. In
most instances, the letter describing the punishment is what is placed
in the personnel file (and then removed in accord with the collective
agreement).
My experience with employee investigations is that the investigations
file is retained separately (and generally under separate lock and key)
from the core personnel file.
As noted previously, Data Protection considerations will need to be
considered, along with relevant child protection legislation and
mandated reporter (as such exists) regulations for instances involving
offenses (real or alleged) against children.
In my experience, HR departments will maintain the files for at least
the term of employment, plus the standard retention period for
terminated personnel files. This has been typical for all but the most
innocuous investigation. The file will be marked as to disposition of
the case ("unfounded", "founded", "undetermined", etc.) and a copy of
the correspondence documenting the outcome will be placed in the file.
In some cases, the active investigation file will contain large volumes
of materials (interview notes, transcripts of proceedings, video tapes,
photographs, etc.), much of which will be disposed of once the case has
disposition and the findings are upheld (if there is an appeals or
grievance process). The investigation materials will be retained for at
least the statute of limitations for any civil suits relating to
wrongful termination. If the matter is a criminal matter, the file will
be retained until authority has been granted by the criminal court for
disposition.
These sorts of files are very sensitive and great care must be taken
with them. Oftentimes, they do not leave the HR department, even when
well into inactive status. They should never be intermingled with the
employee personnel file. Some organizations may consider these
privileged, although this sort of judgment is best left to counsel.
Of like concern are letters of complaint. I have seen several
organizations which placed a copy of an employee's letter of complaint
against a supervisor in the employee's personnel file (not the target
of the complaint, but the originator of the complaint). This is also
problematical in that a supervisor may be granted access to the
employee's personnel file, and if unaware of charges placed against him
or her, could take retaliatory action against the subordinate.
Patrick Cunningham, CRM
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