Shulman Hodges & Bastian LLP
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In litigation cases, the major thing to keep in mind that as soon as any litigation is commenced, the destruction of any document, including emails, must be immediately stopped.

The Chart below discusses retention periods for various categories of documents. *permanent = scan documents, put on a disk with an index, and keep for ten years as a practical matter to avoid any potential liability. If you would like to use a one size fits all retention policy, we recommend using a 10 year period.

LLC or Corp.

Record/Document

Retention Period

LLC

Current list of names, addresses, and contribution and share in profits and losses of each member and holder of a transferable interest

Not expressly given though "current" version required to be maintained by an LLC

Recommend 6 years

LLC

If manager-managed LLC, then current list of names and addresses of each manger

Not expressly given though "current" version required to be maintained by an LLC

Recommend 6 years

LLC

Articles of organization and amendments thereto, operating agreement and amendments thereto, and powers of attorney pursuant to execution of either the articles or agreement

Not expressly given though *permanent retention is recommended by various CPA and HR publications

LLC

Federal, state, and local income tax or information returns and reports; financial statements

Copies of the 6 most recent fiscal years are required

LLC

Books and records related to internal affairs of the LLC

Copies of the 4 past fiscal years and current year are required

Corp.

Record of shareholders (names, addresses, and number and classes of shares held)

Not expressly given though *permanent retention is recommended by various CPA and HR publications

Corp.

Records of shareholder, board, and committee of the board proceedings (minutes, consents, etc.)

Not expressly given though *permanent retention is recommended by various CPA and HR publications

Corp.

Books and records of accounts

Not expressly given though *permanent retention is recommended by various CPA and HR publications

Corp.

Current bylaws and amendments

Not expressly given though maintaining a current version is required

Recommend 6 years

Record/Document

Authority

Longest Retention Period

Tax Records Generally: Cash books; charts of account; year-end financial statements; fixed asset records and depreciations records and schedules; general ledger and journals; income and other tax records and supporting documentation.

IRS "Publication 15 (Circular E) Employer's Tax Guide" Required Documents: EIN; amounts and dates of all wage, annuity, and pension payments; amounts of tips reported by employees; records of allocated tips; fair market value of in-kind wages paid; names, addresses, social security numbers, and occupations of employees and recipients; any employee copies of Forms W-2 and W-2c returned as undeliverable; dates of employment for each employee; periods for which employees and recipients were paid while absent due to sickness or injury and the amount and weekly rate of payments made to them; copies of employees' and recipients' income tax withholding allowance certificates (Forms W-4, W-4P, W-4P(SP), W-4S, and W-4V); copies of employees' Earned Income Credit Advance Payment Certificates (Forms W-5 and W-5(SP)); dates and amounts of tax deposits you made and acknowledgment numbers for deposits made by ETPS; copies of returns filed and confirmation numbers; records of fringe benefits and expense reimbursements provided to employees including substantiation.

IRS "Publication 583 Starting a Business and Keeping Records" Required Documents: Documents relevant to show: gross receipts (cash register tapes, bank deposit slips, receipt books, invoices, credit card charge slips, Forms 1099-MISC.); purchases including amount paid (canceled checks, cash register tape receipts, credit card sales slips, invoices); expenses including amount paid (canceled checks, cash register tapes, account statements, credit card sales slips, invoices, petty cash slips for small cash payments); travel, transportation, entertainment and gift expenses (see the third chart for specifics); employment taxes (see above); assets including price, cost of improvements, deductions taken, acquisition of the asset, how the asset was used, disposition of the asset, selling price, and expenses of sale (purchase and sales invoices, real estate closing statements, canceled checks); returns.

Internal Revenue Code: 4 years

California Revenue & Tax Code: 6 years

6 years

*Note: IRS Publication 583 which contains recordkeeping requirements for businesses indicates that records should be kept as long as they may be needed for the administration of any provision of the Internal Revenue Code (generally this requires keeping records that support an item of income or deduction on a return until the period of limitations runs out).

Payroll Records: Name, employee number, address, age, sex, occupation, SSN, DOB; individual wage records; time and day work week begins; regular hourly rate; hours worked; weekly overtime earnings; daily or weekly straight time earnings; meal periods; deductions from or additions to wages; fringe benefits incentives, merit plans, seniority plans, job classifications; wages paid each pay period; payments dates and periods; piece rates; rate of pay for apprentices; identifying number of contracts each employee is working on; any other form of compensation paid to employee subject to tax under the Federal Insurance Contributions Act

Fair Labor Standards Act: 3 years

Title VII, Civil Rights Act of 1964: 1 year from date the record was made or employment action taken, whichever is later

Federal Unemployment Tax Act: 4 years

Social Security Act : 4 years

Department of Industrial Relations, Division of Labor Standards: 3 years min.

4 years

*Note ERISA related records must be kept for 6 years.

Recruitment, Hiring, and Job Placement Records: applications; resumes; referrals; job inquiries; applicant identification records; help wanted ads; opportunities for training, promotion, or overtime; job opening notices sent to employment agencies or labor unions; employment testing results.

California Government Code: 2 years after creation or receipt

Title VII, Civil Rights Act of 1964: 1 year from date record was made or employment action taken, whichever is later

Fair Employment and Housing Act: 2 years from date record was received or created

Age Discrimination in Employment Act: 1 year from date of personnel action

2 years or the duration of any claim or litigation involving hiring practices.

Employee Wage Records: times cards; wage rate calculation tables; shift schedules; individual employees' hours and days; piece rates or other incentive plans; wage differentials explanations; list of wages and fringe benefits to service employees not included in wage determination; list of employees who worked for any predecessor contractor.

California Labor Code: 3 years

Fair Labor Standards Act: 2 years

Department of Industrial Relations, Division of Labor Standards: 3 years min.

3 years

Unemployment Documents: SSN; company experience rating for unemployment insurance tax purposes; compensation and amount of such compensation subject to tax; amount of contributions to unemployment insurance fund and extent to which employer was liable for the tax.

Federal Unemployment Tax Act: 4 years

4 years

Union and Employee Contracts: union agreements; job orders given to union

Fair Labor Standards Act: 3 years

Age Discrimination in Employment Act: 1 year from date of personnel action

3 years

Employment Eligibility Forms Verification (I-9 Forms): INS 1-9 Employment Eligibility Verification Form. Must be completed for all employees hired on or after 11/7/86.

Immigration Reform and Control Act: min of 3 years. If employed more than 3 years than retain 1 year after termination

The later of 3 years from hire date or 1 year after termination

Employee Personnel Files: disciplinary notices; job accommodations; promotions and demotions; performance evaluations; job descriptions; discharge, layoff, transfer, and recall files; training and testing files; physical files.

Title VII, Civil Rights Act of 1964 : 1 year from date the record was made or employment action taken, whichever is later

Fair Employment and Housing Act: 2 years from date created/received and minimum of 2 years after date of action taken

California Labor Code: 3 years after termination of employment

3 years after termination of employment

Employment Benefits Data: records supporting all required plan descriptions, including vouchers, receipts, worksheets, etc.; records showing employer payments for funding retiree medical fund contributions and payments funding sick pay plans and separation pay benefits paid though sub trusts; records pertaining to each participant in the plan to determine if benefits currently due or those that may become due

Employee Retirement Income Security Act: minimum of 6 years after the filing date of the documents these support. Records required to determine retirement benefits must be kept indefinitely

Internal Revenue Code: recommend at least 6 years per ERISA requirements

6 years but not less than 1 year following a plan termination

Unlawful Employment Practices, Claims, Investigations and Legal Proceedings Records: Personnel and payroll records about complaining parties; personnel and payroll records about all others holding or applying for similar positions; action taken related to a handicapped person.

Title VII, Civil Rights Act of 1964: until final resolution of charge

Fair Employment and Housing Act: 2 years from date record is created or received and for a minimum of 2 years after date action is taken

Fair Labor Standards Act: 2 years

Until disposition of case

Employee Health and Safety Records: first aid records for job injuries causing loss of work time; drug and alcohol test records; Cal/OSHA Form 200 Log of Occupational Illness and Inquiries; Cal/OSHA Form 5020 Employees Occupational Injury or Illness or OSHA Form 101; records of scheduled and periodic inspections to identify unsafe conditions and work practices; documentation of safety and health training for each employee.

Cal/OSHA: 5 years

5 years

*Note: chemical safety and toxic exposure records must be kept for duration of employment plus 30 years; employees with 10 or fewer employees and employees in certain low hazard industries are exempt

IIPP Inspection Records

DIR: Title 8_3203

1 years minimum

OSHA Inspection Records

Cal OSHA

7 years

FMLA Records: leave policies and benefits; dates and hours of leave used; records relating to any dispute regarding designation of leave; employee benefits relating to leave.

Family and Medical Leave Act: 50+ employees, 3 years

California Government Code: 2 years

3 years

Affirmative Action Plan/Data: Applications and other personnel records that support employment decisions (e.g., hires, promotions, and terminations) are considered "support data" and must be maintained for the AAP.

Executive Order 11246 (applies to federal contractors).

The Uniform Guidelines on Employee Selection Procedures (100 or more employees)

2 years

Contracts and Leases

California Code of Civil Procedure: statute of limitations for written contracts generally 4 years; statute of limitations for oral contracts generally 2 years

4 years

*Note: many publications recommend 7 years retention

Audit Records and Reports

Common consensus (accounting, human resources, and business advocacy organizations)

*Permanent

Copyrights, Patents, and Related Papers

Common consensus (accounting, human resources, and business advocacy organizations)

*Permanent

Corporate Stock and Bond Records, Charters, Bylaws, Corporate Meeting Minute Books, Transfer Registers, Options

Common consensus (accounting, human resources, and business advocacy organizations)

*Permanent

Duration Insurance

Common consensus (accounting, human resources, and business advocacy organizations)

*Permanent

Real Estate Records

Common consensus (accounting, human resources, and business advocacy organizations)

*Permanent

Retirement and Pension Records

Common consensus (accounting, human resources, and business advocacy organizations)

*Permanent

Legal Correspondence

Common consensus (accounting, human resources, and business advocacy organizations)

*Permanent

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Shulman Hodges & Bastian LLP
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