Records Reminder

Brad Banasik

By Brad Banasik, MASB Legal Counsel/Director of Labor Relations & Policy

DashBoard, Feb. 8, 2017

When school boards and school administrators finalize their hiring decisions, care should be taken to maintain any records relating to hiring new employees. Federal regulations implementing Title VII and the Americans With Disabilities Act require school districts to retain all records pertaining to employment decisions for a period of two years. Specifically, 29 C.F.R. § 1602.40 states that any personnel or employment record having to do with “hiring, promotion, demotion, transfer, layoff or termination” shall be preserved by a school district for a period of two years from the date of the making of the record or the personnel action involved, whichever occurs later.

The importance of preserving these types of records was emphasized in a United States Court of Appeals case that addressed the issue of whether a school district discriminated against a job applicant on the basis of his age and gender. In Byrnie v Town of Cromwell, Board of Education, the Second Circuit Court of Appeals ruled against a school district in a motion for summary judgment, finding that enough circumstantial evidence existed to permit a reasonable trier of fact to conclude that hiring documents destroyed by the district could show unlawful discrimination.

During the interviewing process, members of the screening committee were given a written ballot form that enabled them to rank the 21 applications to determine which applicants would receive an interview. The votes were then compiled on a “tally sheet.” Additionally, each committee member independently wrote down his or her top three choices for the job opening, in order of preference, after the first round of interviews. These documents, along with any notes made by the interviewers during the first and second rounds of interviews, were destroyed by the school district.

The court found that the ballots, tally sheets and interview notes destroyed by the district fell within § 1602.40’s category of “records having to do with hiring.” While addressing the relevancy of the interview notes, the court stated they “would clarify what aspects of [the applicant’s] interview performances were reflected in the poor subjective evaluation he received from the search committee and whether that evaluation adhered to permissible criteria.” Thus, because the destroyed documents were required to be maintained under a federal regulation, the court found that the destruction of the documents created a presumption that they contained evidence adverse to the school district.

Even though Byrnie v Town of Cromwell, Board of Education is not binding on any court in Michigan or the 6th Circuit, Michigan school officials should still note its decision because it clearly illustrates how missing records will only strengthen an employee’s claim of discrimination and weaken a school district’s defenses in court.

The recordkeeping requirement found in 29 C.F.R. § 1602.40 is an example of what will be discussed in Employment Law Requirements Every School Official Should Know, a breakout session for MASB’s upcoming Labor Relations Conference on Feb. 24, at the Radisson Hotel in Lansing. More details and registration information are available here.

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