From: Staffing

Employers must make and maintain records in compliance with the following federal laws:

• Age Discrimination in Employment Act (ADEA).
• Americans with Disabilities Act (ADA).
• Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).
• Electronic Signatures in Global and National Commerce Act (ESIGN).
• Employee Polygraph Protection Act (EPPA).
• Employee Retirement Income Security Act of 1974 (ERISA).
• Employment tax laws — Federal Insurance Contribution Act (FICA) and Federal Unemployment Tax Act (FUTA).
• Equal Pay Act (EPA).
• Fair Credit Reporting Act (FCRA).
• Fair Labor Standards Act (FLSA).
• Family and Medical Leave Act of 1993 (FMLA).
• Federal contractors.
• Health Insurance Portability and Accountability Act (HIPAA).
• Immigration Reform and Control Act (IRCA).
• Labor Management Reporting and Disclosure Act (LMRDA) and the Civil Service Reform Act (CSRA).
• Occupational Safety and Health Act (OSHA).
• Sarbanes-Oxley (SOX).
• Title VII Civil Rights Act of 1964 (Title VII).
• Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA).

Note: In addition to federal recordkeeping requirements, each state’s labor and employment laws maintain state-specific recordkeeping requirements, sometimes requiring retention for lengthy periods of time. Review these individual state laws to ensure employment law compliance.

Age Discrimination in Employment Act (ADEA)

The ADEA requires covered employers to keep the following records:

• Payroll Records. Employers must keep records containing an employee’s name, address, date of birth, occupation, rate of pay, and compensation earned per week. The records must be kept for at least three years from the date of entry.
• Personnel Records. The records must be kept for one year after the record is made or the personnel action described is taken — whichever is later. Personnel records for persons in temporary positions must only be kept for 90 days after the personnel action. If enforcement action is brought against an employer, records must be kept until the final disposition of the action. The following personnel records must be kept:
  • Records used in hiring (for example, applications, résumés, and responses to job ads).
  • Records pertaining to employment decisions (for example, termination, demotion, promotion, transfer, layoff, recall, and selection for training).
  • Results from employment tests, job advertisements, training records, and physical exams in connection with any personnel action.
• Employee Benefits. Benefit plans, written seniority systems, and written merit plans (if such a plan or system is not in writing, then a summary memorandum is to be kept) must be kept for one year longer than the duration of the plan.

Americans with Disabilities Act (ADA)

The ADA requires covered employers to keep the following records:

• Personnel Records. General personnel records (including application forms, promotion, involuntary termination, transfers, discharges, tests, training, rates of pay, and requests for reasonable accommodations) must be kept for at least one year from the date after the record is created or the action described is taken — whichever occurs later. All personnel records relating to a charge filed with the Equal Employment Opportunity Commission (EEOC), including records related to similarly situated employees, must be retained until disposition of the action.
• Form EEO-1. Covered employers must always keep a copy of their most recent Form EEO-1 at each unit or headquarters.

Note: The EEOC has stated that any records employers are expected to maintain under Title VII should also be kept for purposes of the ADA.

Consolidated Omnibus Budget Reconciliation Act (COBRA)

There are no federally mandated record retention requirements under COBRA; however, it is recommended that employers keep the following records:

• List of employees covered by a group health plan.
• Records of terminations, reductions in hours, leaves of absence, and/or deaths of employees covered by the group’s health plan.
• Medicare eligibility of covered employees.
• Disability status of covered employees.
• List of retirees covered by a group health plan.
• Current addresses of employees.
• Copies of letters sent to employees advising them of COBRA rights.
• Written acknowledgments from employees and qualified beneficiaries that they received notice of their COBRA rights.
• Current addresses of anyone receiving COBRA benefits.
• Record of COBRA premium payments made by employees.
• Record of any changes made to a group health plan.
• List of employees denied COBRA coverage, along with reasons why they were denied coverage.
• Method used to calculate COBRA premiums.

Electronic Signatures in Global and National Commerce Act (ESIGN)

Under ESIGN, an electronic record is an adequate record even if a statute requires the record to be maintained in its original form (not electronic); however, it must meet the following requirements:

• Be available to everyone with permission to access the document for the period of time required by law and be able to be reproduced accurately at a later time by transmission, printing, or otherwise.
• Accurately reflect the information in the record or contract.

Federal and state agencies may still require that certain records be retained in a tangible printed or paper format if both of the following apply:

• There is a compelling government interest relating to law enforcement or national security for imposing such requirement.
• Imposing such a requirement is essential to attaining such interest.

Employee Polygraph Protection Act (EPPA)

Under the EPPA, employers must retain required records for a minimum of three years from the date the polygraph examination is conducted (or from the date the examination is requested if no examination is conducted).

Employers investigating an economic loss or injury must maintain a copy of the statement that describes the specific incident or activity under investigation and the basis for testing that employee and proof of service of that statement to the examinee. Employers who manufacture, distribute, or dispense controlled substances must maintain records specifically identifying the loss or injury in question and the nature of the employee’s access to the person or property that is the subject of the investigation.

Every employer who requests an employee or prospective employee submit to a polygraph examination pursuant to the ongoing investigation, drug manufacturer, or security services EPPA exemptions must maintain:

• A copy of the written statement that sets forth the time and place of the examination and the examinee’s right to consult with counsel.
• A copy of the written notice provided by the employer to the examiner identifying the persons to be examined.
• Copies of all opinions, reports, or other records furnished to the employer by the examiner relating to such examinations.

All exempt private sector employers must keep the required records safe and accessible at the place or places of employment or business or at one or more established central recordkeeping offices where employment or examination records are customarily maintained. If the records are maintained at a central recordkeeping office, other than in the place or places of employment or business, such records must be made available within 72 hours following notice from the U.S. Secretary of Labor or its authorized representative.

Employee Retirement Income Security Act (ERISA)

Under ERISA, employers must maintain the following records:

• Data used to support summary plan descriptions (SPDs) and other records supporting plans or reports. This includes any of the following, which must be kept for six years after the filing date of the documents:
  • Vouchers.
  • Worksheets.
  • Receipts.
  • Applicable resolutions.
• Employee/beneficiary records relevant to benefits. These records must be kept for the duration of the plan.

Employment Tax Laws

The Federal Insurance Contribution Act (FICA)

Under FICA, employers must keep the following for four years after the tax due date or the date tax is paid — whichever is later:

• The amount of each wage payment, which is separately subject to Social Security and Medicare taxes.
• The amount of FICA tax collected for each wage payment and the date collected.
• The reason the total wage payment is more than the taxable amount, if they differ.
• All remuneration in the form of tips received by employees in the course of employment.
• Copies of employees’ receipts, if refunded over-withheld FICA tax.

Federal Unemployment Tax Act (FUTA)

Pursuant to FUTA, employers must retain the following records for four years from the tax due date or tax payment — whichever is later:

• Total wages paid to each employee, including withholding.
• The amount of pay subject to FUTA and the reason if this amount is not equal to total compensation.
• The amount paid into any state unemployment fund, including any amounts deducted or to be deducted from employee pay.
• Any other information required to be shown on the FUTA tax return (Form 940 or 940-EZ) and the amount of the tax.

Optional Recordkeeping

Employers should also maintain records containing the following information:

• Federal Employer Identification Number (EIN).
• Copies of all filed tax returns (Forms 941s, 940s, 940-EZs, W-2s, and 1099s).
• The original Form W-2 and the envelope mailed in, if an employee’s W-2 is undeliverable.
• Copies of cancelled checks, deposit coupons, and ACH confirmation numbers, if deposited taxes via electronic funds transfer using ACH debit option.
• The dates and amounts of employer tax deposits.
• Records of taxable fringe benefits, plus the employer’s substantiation of the taxable amounts.
• Records of employees’ substantiations of travel and entertainment expenses.
• Correspondence from the IRS regarding any employee’s withholding.

Equal Pay Act (EPA)

Pursuant to the EPA, employers must keep the following records:

• FLSA records. The EPA incorporates by reference the recordkeeping requirements of the FLSA (for example, the number of hours each employee works, pay rates, total wages, and total deductions). These records must be kept for at three years after the last date of entry.
• Records regarding the basis for payment. Employers must keep copies of timecards and sheets, records explaining any wage differentials between employees of the opposite sex (for example, job descriptions, job evaluations, merit, incentive, and seniority systems), and wage rate tables. These must be kept for at least two years from the date the record was made.
• Collective-bargaining agreements. Collective-bargaining agreements should be kept for at least three years.

Fair Credit Reporting Act (FCRA)

There are no federally mandated recordkeeping requirements under the FCRA. However, the statute of limitations for employee FCRA claims is two years, regardless of whether the employee knows of the violation. Therefore, employers are advised to keep any information that may be used to defend a claim for at least two years.

Fair Labor Standards Act (FLSA)

Employers must maintain the following:

• Payroll records must be retained for at least three years after the last date of entry. Payroll records include the following:
  • Employee’s name, Social Security number, address, and ZIP code.
  • Employee’s date of birth (if the employee is under 19 years of age).
  • Gender of employee.
  • Occupation of each employee.
  • Time of day and the day of the week the employee’s workweek begins (if the employee is part of a workforce where all employees’ workweeks begin at the same day/time, then a single notation of the day and the time all employees’ workweeks begin is sufficient).
  • Employee’s daily and weekly hours worked.
  • Total overtime earnings for the workweek.
  • Total additions to and deductions from employee’s pay each pay period.
  • Total wages paid each pay period.
  • Date of payment and the pay period covered by the payment.
• Supplementary records must be retained for two years after the record is made. Supplementary records include, but are not limited to, the following:
  • Timecards.
  • Wage rate tables.
  • Customer order and billing records.
  • Records explaining wage differentials to employees of the opposite sex.
• Age certificates must be maintained for the duration of employment.
• Written training agreements must be kept for the duration of the training program.
• For tipped employees, the following records must be retained for three years after the date of entry:
  • A symbol or letter that identifies the employee as a tipped employee.
  • The actual number of hours worked each workday in a tipped position and total daily or weekly straight-time earnings for such hours.
  • The total hours worked each workday in a nontipped position and total daily or weekly straight-time earnings for such hours.
  • Amount by which the wages of each tipped employee have been deemed to be increased by tips or determined by the employer (not in excess of 40 percent of the applicable statutory minimum wage).
  • The amount per hour that the employer takes as a tip credit shall be reported to the employer in writing each time it is changed from the amount per hour taken in the preceding week.
  • Weekly or monthly amount reported by the employee of tips received.
• In addition to the general recordkeeping requirements, employer payroll records must segregate trainees, learners, and apprentices and indicate their status using a code or symbol. This information must be retained for three years from the date the record is created.
• Students working outside of school hours in the retail or service business must be segregated from regular employees on the payroll by indicating their status with a code or symbol. In addition to general payroll records, the following records must be kept for full-time students who work under a full-time student certificate at subminimum wages:
  • Information from the school that the student receives primarily daytime instruction at the physical location of the school. Should the student change schools, another certificate is required from the new school that the student is accepted as a full-time student and receives primary daytime instruction.
  • Monthly records of the students’ work hours, and the total hours worked by all employees during the month.

Family and Medical Leave Act (FMLA)

No particular form of records is required. However, the following must be kept for at least three years after the date the record is made:

• Basic payroll and identifying employee data. This information includes the following:
  • Employee name, address, and occupation.
  • Rate or base of pay and terms of compensation.
  • Daily and weekly hours worked for each pay period.
  • Additions to or deductions from wages.
  • Total compensation paid.
• Dates FMLA leave is taken by eligible employees. This information can be in the form of time records or leave requests. The leave time must be designated in the records as FMLA leave and may not include leave required under state law or employer plans that are not also covered by the FMLA. If leave is taken in increments of less than one full day, the hours of leave must be recorded.
• Copies of written employee notices of leave given employee under the FMLA. This information includes both copies of general and specific written notices given to employees as required by the FMLA.
• Documents describing employee benefits or employer policies and practices related to the taking of paid and unpaid leaves. This documentation should include written and electronic records and records of premium payments of employee benefits.
• Records of disputes between the employer and an eligible employee regarding the designation of leave as FMLA leave. Any written statements from the employer or employee relating to the reasons for the designation and/or the dispute should be included.

These records must be available for inspection, copying, and transcription by authorized representatives of the Department of Labor upon request.

Note: Records relating to medical certifications and medical histories must be maintained in separate files and treated as confidential records.

Federal Contractors

The Internet Applicant rule, located at 41 C.F.R. 60-1.12, addresses recordkeeping by federal contractors and subcontractors for the Internet hiring process and the solicitation of race, gender, and ethnicity of internet applicants. Under the rule, contractors are required to maintain all expressions of interest through the internet or related electronic data technologies as to which the contractor considered the individual for a position, except for searches of external résumé data bases. Contractors must also maintain the following records:

• Identification of job seekers contacted regarding their interest in a position.
• For internal databases, a record of each résumé added to it, a record of the date each résumé was added to the database, the position for which each search of the database was made, and corresponding to each search, the substantive search criteria used and the date of the search.
• For external résumé databases, the contractor must maintain a record of the position for which each search of the database was made, and corresponding to each search, the substantive search criteria used, the date of the search, and the résumés of any job seekers who met the basic qualifications for the position who are considered by the contractor.

Contractors must also solicit and collect data from each applicant or internet applicant (applicant) that identifies gender, race, and ethnicity. The law does not specify a time or point in the selection process that contractors must solicit this information, so long as the information is solicited from all applicants.

Retention of these records depends on company size and are as follows:

• Records must be retained for one year for companies with fewer than 150 employees or a contract of at least $150,000.
• Records must be retained for two years for companies with at least 150 employees and a contract of $150,000.

This time period is measured from the time the record was created or from the time of the personnel action associated with that record, whichever is later.

Health Insurance Portability and Accountability Act (HIPAA)

According to 45 C.F.R. § 164.361(b)(2), HIPAA requires a covered entity to do all of the following:

• Retain required documentation for six years from the date of the document’s creation or the date when it last was in effect, whichever is later.
• Make documentation available to those persons responsible for implementing the procedures to which the documentation pertains.
• Review documentation periodically, and update as needed, in response to environmental or operational changes affecting the security of the electronic protected health information.

HIPAA requirements pre-empt state laws if they require shorter periods; however, state laws may require a longer retention period as state laws generally govern how long medical records are to be retained.

Immigration Reform and Control Act (IRCA)

Under the IRCA, employers must keep an employee’s completed Form I-9 for three years from the date of hire or one year after termination — whichever is later. If an employee is rehired within three years, an employer may rely on a previously completed I-9. However, if an employee is rehired after three years, the employee must submit a new I-9.

Employers are required to retain the page of the form on which the employer and the employee entered data. Any copies of documents presented by the employees for employment verification must be retained with the corresponding Form I-9.

Labor Management Reporting and Disclosure Act (LMRDA) and Civil Service Reform Act (CSRA)

Under the LMRDA and CSRA, every person who is required to file a report under either act, as an individual or as an officer of a union or employer, is responsible for maintaining records that will provide in sufficient detail the information and data necessary to verify the accuracy and completeness of the report. These records must be kept for at least five years after the date the report is filed. Any record necessary to verify, explain, or clarify the report must be retained, including, but not limited to, vouchers, worksheets, receipts, and applicable resolutions.

Occupational Safety and Health Act (OSH Act)

Under the OSH Act, many employers with more than 10 employees are required to keep a record of serious work-related injuries and illnesses; however, certain low-risk industries are exempt. Under the act, covered employer must retain the following records for five years following the year to which the record relates:

• Form 300, Log of Work-Related Injuries and Illnesses to classify work-related injuries, illnesses, and to note the extent and severity of each case. When an incident occurs, the log is used to record specific details about what happened, and how it happened.
• Form 300-A, Summary of Work-Related Injuries and Illnesses to show the work-related injury and illness totals for the year in each category. It must be posted from February 1 to April 30 following the year to which it relates.
• Form 301, Injury and Illness Incident Report to record details about a workplace injury or illness.

Employers must also retain exposure records and medical records for all employees working in areas that may expose them to toxic substances or harmful physical agents. With exceptions, these records must be generally kept for 30 years.

Sarbanes-Oxley Act (SOX)

The Sarbanes-Oxley Act imposes strict financial reporting requirements, disclosure obligations, and securities and accounting reforms on all publicly-held corporations and has specific provisions for the retention of documents surrounding the audit process.

Specifically, documents relating to an audit, including working papers, must be retained for seven years. The documents in question must include all records (including electronic) created, sent, or received in the course of an audit, and include working papers that contain conclusions, opinions, analysis, or financial data pertaining to an audit or review.

Employers will be fined up to $1,000,000 and imprisoned for up to 20 years for the intentional alteration or destruction of records (including email) with the intent to impede, obstruct, or influence a current or future federal investigation.

Title VII of the Civil Rights Act of 1964

Covered employers must retain the following information under Title VII:

• All personnel and employment records made or used (including, but not limited to, requests for reasonable accommodation, application forms submitted by applicants, and records dealing with hiring, promotion, demotion, transfer, lay-off or termination, rates of pay, compensation, tenure, selection for training or apprenticeship, or other terms of employment) must be preserved as follows:
  • Private employers must retain such records for one year from the date of making the record or the personnel action involved, whichever occurs later; however, in the case of involuntary termination of an employee, the terminated employee’s personnel or employment records must be maintained for one year& from the date of termination.
  • Educational institutions and state and local governments must retain such records for two years from the date of the making of the record or the personnel action involved, whichever occurs later; however, in the case of involuntary termination of an employee, the terminated employee’s personnel or employment records must be maintained for two years from the date of termination.
• Other records must be retained for the following periods:
  • Labor unions that are “referral unions” must retain all membership and referral records (including applications for same) for one year from the date of making the record.
  • Apprenticeship committees that control apprenticeship programs must retain all apprenticeship records, including, but not necessarily limited to, requests for reasonable accommodation, test papers completed by applicants, and records of interviews, for two years from the date of making of the record.
• Records relating to a charge of discrimination. Where a charge of discrimination has been filed under Title VII, the ADA, or GINA, or where a civil action has been brought by the commission or the Attorney General, the respondent private employer, state or local government employer, educational institution employer, labor union, or apprenticeship committee must retain all records related to the charge or action until final disposition of the charge or action. The date of final disposition means the date of expiration of the statutory period within which the aggrieved person may bring an action in a U.S. District Court or, where such an action has been brought, the date on which such litigation is terminated.

Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA)

The VEVRAA regulations require that each contractor who is required to develop a written affirmative action program (AAP) also establish a hiring benchmark for protected veterans each year. This benchmark is a tool to help contractors assess the effectiveness of their efforts to recruit and employ protected veterans. A contractor may establish its hiring benchmark in one of two ways:

• A contractor may establish a benchmark equal to the national percentage of veterans in the civilian labor force, as posted in the Benchmark Database on the Office of Federal Contract Compliance Programs (OFCCP) website.
• A contractor may establish its own benchmark by considering the following five factors:
  • The average percentage of veterans in the civilian labor force in the state where the contractor is located over the preceding three years, as posted in the Benchmark Database on the OFCCP website.
  • The number of veterans, over the previous four quarters, who participated in the employment service delivery system in the state where the contractor is located, as posted in the Benchmark Database on the OFCCP website.
  • The applicant and hiring ratios for the previous year.
  • The contractor’s recent assessments of the effectiveness of its outreach and recruitment efforts.
  • Any other factors, such as the nature of the job or its location, that would affect the availability of qualified protected veterans.

Contractors must maintain records related to their benchmark for three years, allowing them to assess the success of their outreach and recruitment efforts for veterans over time.