How long should written warnings or counseling statements stay on file?

Employers are required under federal nondiscrimination laws (Title VII, Americans with Disabilities Act (ADA), and Age Discrimination in Employment Act (ADEA)) to maintain records pertaining to employment actions for at least one year from the date of action. Employers with federal contracts are required to maintain records relating to employment actions for a period of at least two years from the date of creation of the personnel record or the personnel action, and state laws may have even longer retention periods. Employment actions include hires, separations, rehires, promotions, demotions, transfers, layoffs, recalls, training opportunities and employment test results. Although the law is not specific to retention requirements for corrective action documents such as written warnings and counseling statements, these forms may be supporting documentation for some of these employment actions.

Corrective action documents, much like performance reviews, can become a permanent record in an employee's personnel file. Some employers find it beneficial to keep these documents on file indefinitely for active employees as these records provide employers with a good history and overall view of the employee's job performance. Other employers argue that corrective action records (when they do not result in an employment action) should be removed from the personnel file after a period of time (e.g., after six or 12 months without any further incidents). If the organization decides to remove documents from the personnel file, it should have an established and consistently implemented policy and procedure that reflects this practice.

Generally, if an employee maintains an acceptable level of behavior for 12 months or more, many employers agree that older disciplinary warnings normally no longer influence future employment decisions. At this point, employers may not want to use the prior disciplinary warning document to guide future corrective actions, although there may be some exceptions. Employers may need to consider warnings looking back much further when faced with employees who have patterns of inappropriate behavior or more egregious behavior, such as harassment, violence or safety and security violations. See examples below:

• Scenario one: An employee has a written warning on file for attendance issues from three years ago. The employee's attendance has been outstanding since that time, but just recently the employee has begun to miss time due to personal reasons. The employer may decide to provide only a verbal counseling because three years have passed since the employee had attendance issues.

• Scenario two: An employee had a written warning on file for making inappropriate comments and gestures to another employee two years ago. A similar incident occurs again. If the written warning from two years ago is on file, the employer would have supporting documentation to administer a stronger disciplinary action such as a final warning or even termination of employment.

Having corrective action documents on file may help employers determine the next course of action for any future performance issues or violations of policy. These warnings may help document patterns or repeat offenders and may be critical in the event the employee initiates legal action against the employer. Therefore, prior to implementing a practice of removing warnings from active employee files, consult legal counsel.