Kirsten Hotchkiss, VP Global Employee Relations and Employment Counsel, GBT US, LLC
In the Digital Age, we are drowning in information. The average Fortune 500 Company accumulates more information than the United States Library of Congress, the largest library in the world. The sea of information makes it difficult not only to track the information that is in storage but also to properly store and manage the constant stream of new records and documents that companies create or receive every day.
The difficulty with information management is that there is no consistent or uniform process to do so. Electronic systems and products—whether email, office suites, databases, or various media formats, are designed to create and store information, but to facilitate destruction in any organized fashion. E-mailing documents within a company creates confusion as to which version is most current; and, in the age of emojis and texting, it is virtually impossible to enforce a uniform e-document naming convention in a company of any size. Add to that the process that occurs when an employee leaves a company, and all you have is one big information haystack, not only with electronic information, but paper as well. One company that undertook a document clean-up process at a large storage facility uncovered thousands of boxes of useless paper reports, half-used legal pads, coffee mugs, clipboards, staplers, and other miscellaneous office material. When an employee departed, other employees simply boxed everything up and shipped it off-site, using the Out of Sight-Out of Mind theory of Document Management. Apparently, cost was not an issue. Another company that doesn’t even exist anymore still has over 24,000 boxes in storage. Too much to review, but no one wants to take the risk of destruction.
To further complicate matters, there is no single legal definition of a Business Record. In the U.S. alone, the various rules that govern information management, such as those disseminated by the American Bar Association, the Federal Deposit Insurance Corporation, the Equal Employment Opportunity Commission, and the Internal Revenue Service all have varying requirements. This can lead to retention schedules that are redundant and contradictory. One global company has an information retention schedule over 500 pages long with different retention schedules for every type of record in every country. Because of the varying definitions and country rules, even one file containing a contract and its addendum would have different retention periods. When confronted with such a complicated program, employees tend to defer compliance, telling themselves, “I’ll get to that later,” and of course then the problem simply multiplies.
To be sure, the failure to properly manage paper and electronic records can cause complications and exposure for the company. Even just managing one’s own emails and documents can become overly complicated, resulting in inefficiency, mistakes, and lower productivity.
Even just managing one’s own emails and documents can become overly complicated, resulting in inefficiency, mistakes, and lower productivity
In the event of litigation, long hours and a significant amount of resources are spent wading through information systems to identify and preserve relevant documents.
While there is no quick fix, companies must adopt a simple information management program that highlights four goals:
• Defining the Business Records that suit your business
• Identifying a uniform filing and storage system limited only to Business Records
• Identifying as few retention periods as possible
• Destroying all documents and information that are not Business Records as soon as practicable and destroying Business Records at the end of their retention period, subject to legal restraints.
Here are recommended steps to streamline the process:
1.Define the Business Records for your company: There is no uniform rule for what constitutes a Business Record, so companies have some latitude here. A Business Record is generally a final reflection of an action of the company, such as a final contract, invoice, receipt, tax filing, offer letter, or payroll record. All other documents, such as drafts of contracts, communications, proposals, and 99 percent of your emails are generally not Business Records and do not have legally prescribed retention periods. These can be classified as Office Documents or other similar distinguishing nomenclature.
• Distinguish between active Business Records and inactive Business Records. Active business records can include contracts currently in force with third parties or records relating to current employees. Inactive Business Records can include expired contracts or records relating to terminated employees.
• Segregate the documents that are not Business Records but nevertheless do have required retention periods, such as resumes of job candidates, if applicable.
• Ensure there is a method for classifying, segregating and separately securing information that constitutes Personally Identifying Information or other highly sensitive information.
• Keep Office Documents only so long as needed by an individual or a department to facilitate the performance of his/her job and then delete or otherwise destroy them.
2. Set the procedures and parameters: For every department, identify the location where final Business Records are to be maintained, whether it is a paper storage cabinet or a shared file or database. Designate who is responsible to ensure the records are stored properly.
3. Identify the legal requirements for retention periods for your Business Records and implement, as much as possible, a “one size fits all” approach.
4. Have a detailed and regularly scheduled filing and destruction process: Ensure that employees understand the difference between Business Records and Office Documents and the importance of ridding themselves of information that is no longer useful. Identify specific Records Managers to be trained and responsible for the retention of Business Records and their destruction at the appropriate time.
5. Work with your IT department to implement a routine deletion process for Office Documents where employees must “opt in” to preserve an email or draft of a document.
6. Keep in mind that a legal action or audit would require a suspension of the destruction process of all relevant Office Documents, not just Business Records, so you must also establish protocols to ensure the collection and retention of any documents required to be produced by law such as for discovery in an active litigation.
In short, the advent of electronic record-keeping has made information management a more complex task that must be managed appropriately. To ensure employee buy-in, the program must be, uniform, simple and easy to follow.