Maintaining Complaint and Investigation Records: Best Practices and Legal Obligations

Proper recordkeeping is essential for organizations, especially when addressing sensitive complaints and investigations. Whether dealing with discrimination complaints, harassment allegations, child abuse allegations, or other workplace or public-facing issues, maintaining accurate and complete records of both complaints and responses is crucial for ensuring a compassionate response and protecting everyone involved. This article explores best practices for retaining records, how to manage them effectively, and the legal consequences of failing to do so.

A. Where Should Records be Maintained?

Much employee information is retained in personnel files. But records of complaints and investigations are different. They should not be maintained in individual personnel files: in most jurisdictions, employees have a right to look at their own personnel files. While it would not be a problem if the file contained a complaint the employee made, complaints by others or material about an investigation would likely violate the confidentiality of others. Even under laws like GDPR, requested information must be properly redacted before being provided to an employee.

Records of complaints, responses, investigations, and further action should be maintained in separate, highly confidential files that can only be accessed by leadership within HR and the organization.

B. Why Should Records be Maintained?

 Employers should retain records of employment investigations to demonstrate a commitment to addressing concerns with care and transparency, whether they involve employees, clients, or members of the organization. These records can show that the organization took complaints seriously, conducted thorough investigations, and complied with applicable laws and policies. Besides showing a general practice, it can support the organization’s actions around particular incidents. Retaining such records can provide critical evidence in the event of future litigation or regulatory investigations. Conversely, the failure to retain records can undermine trust, create legal risks, and harm an organization’s credibility, making it appear as though no investigation occurred or that the employer acted improperly.

C. How to Retain Records

The method of record retention depends on the organization’s size and resources. Options include physical files, electronic folders, spreadsheets, or Human Resources Information Systems (HRIS) software. This will also depend on the size of the file. A simple complaint might be a page long, but a full investigation could gather hundreds (if not thousands) of pages of information.

Regardless of the size of the file and the method chosen, it’s critical that records are securely stored, organized, and easily retrievable. Again, access should be limited to authorized personnel to protect confidentiality.

Records should include all key details, such as:

• The date the complaint was received;
• The identity of the complaining party (if not anonymous);
• The identity of the person or persons accused;
• A summary of the complaint;
• Copies of all documents gathered during the investigation;
• Witness statements or memoranda;
• Investigator notes;
• Actions taken during the investigation; and
• Outcomes or resolutions.

Consistency in recordkeeping is key. Employers should designate a specific location or system for maintaining these records to ensure compliance and efficiency. HR staff should be trained on what records to gather and keep. Investigators should be trained on how to create a complete investigative file, with relevant documents included and extraneous documents or communications removed.

D. How to Retain Records in Colorado

Colorado’s Protecting Opportunities and Workers’ Rights Act (POWR) has specific requirements to maintain a repository of discrimination and harassment complaints. This repository must include:

• The date of the complaint;
• The identity of the complainant (if not anonymous);
• The identity of the alleged perpetrator; and
• The substance of the complaint.

This is really fairly basic guidance that all organizations should be following.

​​​​​​​E. How Long to Retain Records in Colorado

The length of time organizations should retain records depends on federal, state, and local laws. For example, under Colorado’s POWR Act, employers must retain certain personnel records for at least five years. This includes:

• Requests for accommodations;
• Complaints of discrimination or harassment and responses;
• Applications for employment;
• Records related to hiring, promotion, demotion, transfer, layoff, termination, and compensation; and
• Training records.

Some of these records would go into individual personnel files, some would be general HR records, and some would be kept in a confidential investigative file.

The five-year retention period begins on the latest of the following events: the date the record was created, the date of the personnel action, or the date of the final resolution of a related discrimination charge or lawsuit. Employers in Colorado should review and update their record retention policies to comply with this law.

​​​​​​​F. Best Practices for How Long to Keep Records

If there is no controlling law, such as in Colorado, there are still best practices. All individual employment records should be kept at a minimum until the time frame for employment claims has passed. Five years is not a bad rule of thumb.

Records of complaints and investigations should indeed be kept for at least 5-7 years, as they may become evidence in other cases of organizational practices. Serious claims should be kept until there can no longer be any individual or organizational liability, which could be a long time in the case of some sexual misconduct claims.

Any complaint or response related to the safety of children should simply be kept permanently. Allegations of abuse and memories of abuse can surface decades later. Due to lasting trauma, lawsuits around child sexual abuse are often brought when most of the actors are dead or gone and most of the documents no longer exist. Even so, an organization that is well-prepared with documentation is best set up to provide healing to all parties in the future.

​​​​​​​G. Consequences of Failing to Retain Records

Failing to retain employment investigation records can have significant consequences. If they were supposed to keep the records, employers may face fines, penalties, or adverse inferences in legal proceedings. For example, if an employer cannot produce records during a discrimination lawsuit, the court may assume the records would have supported the employee’s claim. Even if they were not required to keep the records, people may assume that they should have, and informally draw a negative inference. Poor recordkeeping can damage an organization’s reputation and erode trust.

Beyond legal risks, incomplete or disorganized records can hinder internal investigations, delay timely and compassionate responses to complaints, and complicate compliance with government audits or regulatory inquiries. Effective record retention is not just a legal obligation but also a practical necessity for ensuring accountability, fostering trust, and supporting smooth business operations.

​​​​​​​H. Getting on Top of Recordkeeping

• Clearly outline record retention procedures in your organization’s written policies, specifying how long records will be kept and how they will be managed. This may vary depending on the type of record.
• Train managers and HR staff to understand recordkeeping requirements and the importance of compliance.
• Use password-protected files, locked cabinets, or encrypted software to safeguard sensitive information.
• Periodically audit records to confirm compliance with applicable laws and ensure they are complete and accurate.
• Consult an attorney to ensure your policies align with state and federal requirements, particularly if your business operates in multiple jurisdictions.

If you practice effective record-keeping around complaints and investigations, it will help  reduce legal risks, promote workplace accountability, and demonstrate a commitment to a safe, supportive, and healthy work environment for everyone involved.