Implementing a well-established record retention policy and practice is essential for an investigator to adhere to ethical and professional responsibilities, avoid spoliation claims, and maintain efficient practices to reduce costs; this ensures compliance with applicable rules of professional responsibility.
In the event of litigation, an investigator’s retention policy will be critical. Therefore, establishing and following a record retention policy is necessary for investigators to be able to defend their practices for retaining and destroying investigation files.
This article will discuss some of the best practices the AWI recommends for retaining investigation files.
1. Decide which documents to keep and for how long.
Investigators tend to generate a lot of documents when conducting employee complaint investigations, which can pose storage challenges. Storage space can become an issue even in offices that use virtual documents, as most cloud-based document management systems charge fees for storage over a certain limit.
Currently, no regulations dictate what information investigators must keep and how long they should retain investigation files. Several different rules may apply, depending on the circumstances. However, investigators must be able to justify the decisions regarding the destruction of investigation documents, especially when presenting such reasons to an opposing party or a jury.
2. Keep all information reviewed, relied upon, or generated during the investigation.
Investigators can look to general principles that govern workplace investigations for guidance on maintaining investigation files. Investigators should:
- Act reasonably and in good faith and make impartial decisions.
- Consider the employer’s intentions to use the investigation findings to substantiate employment decisions and defend against subsequent claims; and
- Consider how the investigation could be attacked in litigation.
Therefore, investigators should ensure that the following are maintained:
- Materials relied upon for the investigation findings.
- Material that was reviewed but determined irrelevant to the investigation findings; and
- Material relevant to demonstrating the investigation’s integrity, i.e., communication with witnesses demonstrating a timely investigation, discussions with clients demonstrating the investigator’s impartiality, or efforts made to gather documentation demonstrating a thorough investigation.
At a minimum, investigators should keep a record of all the documentation provided by the client or witnesses, documentation obtained through the investigator’s research, all material showing communications between the investigator and the client or witnesses, and all documentation generated during the investigation, including interview notes, summaries, and reports.
3. Consider applicable professional rules of ethics and statutes of limitation.
Investigators are advised to consider relevant statute of limitations that may relate to the investigation. For instance, in some jurisdictions there is a two-year statute of limitations for public policy claims, up to a four-year statute of limitations for wage-hour claims, and up to a 10-year statute of limitations for qui tam claims under the Federal False Claims Act.
An investigator should consider whether a “litigation hold” has triggered an additional obligation to preserve documents for extended periods. When a litigation hold obligation is triggered, an investigator should retain all documents covered by the litigation hold and suspend any routine file destruction practices until the litigation hold is extinguished.
In most cases, the employer is the party subject to a litigation hold obligation. However, the investigator often receives notice of the employer’s preservation obligations. Even in an absent formal notice, an investigator should consider the employer’s potential litigation hold obligations when making decisions regarding what to retain and how long to retain it.
Lastly, a records management index serves as an important reference tool by noting whether a file has been returned to a client, retained, or destroyed. However, since the employer owns the file, and absent agreement otherwise, the file must be returned to the employer.
Why choose California Labor Solutions?
California Labor Solutions (CLS) is one of the only HR firms that is licensed* to conduct workplace investigations in California. We have conducted hundreds of neutral, objective, and unbiased workplace investigations for employee complaints relating to allegations of discrimination, harassment, retaliation, and various types of employee misconduct with the utmost quality, detail, and efficiency.
*California Private Investigator License Number 26311.