29 C.F.R. § 1602.40

Preservation of records made or kept

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Any personnel or employment record made or kept by a school system, district, or individual school (including but not necessarily limited to requests for reasonable accommodation, application forms submitted by applicants and other records having to do with hiring, promotion, demotion, transfer, layoff, or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship) shall be preserved by such school system, district, or school, as the case may be, for a period of 2 years from the date of the making of the record or the personnel action involved, whichever occurs later. In the case of involuntary termination of an employee, the personnel records of the individual terminated shall be kept for a period of 2 years from the date of termination. Where a charge of discrimination has been filed, or an action brought against an elementary or secondary school by the Commission or the Attorney General, the respondent elementary or secondary school system, district, or individual school shall preserve similarly at the central office of the system or district or individual school which is the subject of the charge or action, where more convenient, all personnel records relevant to the charge or action until final disposition thereof. The term “personnel record relevant to the charge,” for example, would include personnel or employment records relating to the person claiming to be aggrieved and to all other employees holding positions similar to that held or sought by the person claiming to be aggrieved; and application forms or test papers completed by an unsuccessful applicant and by all other candidates for the same position as that for which the person claiming to be aggrieved applied and was rejected. The date of “final disposition of the charge or the action” means the date of expiration of the statutory period within which a person claiming to be aggrieved may bring an action in a U.S. district court or, where an action is brought against a school system, district, or school either by a person claiming to be aggrieved, the Commission, or the Attorney General, the date on which such litigation is terminated.

(Approved by the Office of Management and Budget under control number 3046-0040) [38 FR 26719, Sept. 25, 1973, as amended at 46 FR 63268, Dec. 31, 1981; 56 FR 35756, July 26, 1991]

Notes of Decisions

Cited in 3 cases, 2001–2015 · leading case: Robert F. Byrnie v. Town of Cromwell, Bd. of Educ., Body Corp. Cromwell Bd. of Educ. Body Corp., 243 F.3d 93 (2d Cir. 2001).

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Robert F. Byrnie v. Town of Cromwell, Bd. of Educ., Body Corp. Cromwell Bd. of Educ. Body Corp., 243 F.3d 93 (2d Cir. 2001). · cites it 2× “However, in the end, it does not matter when the documents were destroyed since even if the documents were destroyed days after the search ended and before anyone had wind of Byrnie’s “concerns,” Cromwell was still required by federal regulations implementing Title VII and the…”

Zbylski v. Douglas Cnty. Sch. Dist., 154 F. Supp. 3d 1146 (D. Colo. 2015). · cites it 4× “Federal Regulation Plaintiff identifies 29 C.F.R. § 1602.40 as requiring a school district or individual school to preserve personnel or employment records for a certain period-of time following the personnel action.”

Scalera v. Electrograph Sys., Inc., 262 F.R.D. 162 (E.D.N.Y 2009). “at 108 (citing 29 C.F.R. § 1602.40 ). The court held that “where, as here, a party has violated an EEOC record-retention regulation, a violation of that regulation can amount to a breach of duty necessary to justify a spoliation inference in an employment discrimination case.”

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