News & Insights

HR Best PracticesDocument RetentionGINAFebruary 12, 2012by Stanton LawEEOC’s New Rules Extend Recordkeeping to GINA

The Equal Employment Opportunity Commission earlier this month issued its final rule extending employers’ record keeping obligations under Title VII and the Americans with Disabilities Act to those organizations covered by the Genetic Nondiscrimination Act, or GINA.

Effective April 3, 2012, employers with 15 or more employees must retain all personnel and employment records for at least one year – or until any charges and litigation involving the documents are resolved.   Documents to be preserved include applications; hiring, promotion, disciplinary, and termination records; and compensation history.  As with the Title VII and ADA regulations, the new GINA regulations do not mandate the creation of any particular document or record.  Instead, the rules only prescribe the materials’ retention if they are prepared.

GINA’s Title II prohibits discrimination by employers (and insurers) based on genetic information.  It also prohibits employers from requesting or acquiring genetic information regarding an employee or family member of an employee.  Because in many cases employers can become aware of seemingly innocuous information about an employee or an employee’s family member that may later be argued to constitute “genetic information,”  savvy employers are already cautious about for what information they ask and how they use (or don’t use) that information in employment decisions.