Staff-Line Blog

Record Retention Requirements

Published by Dean Domenico on June 9th, 2010 in category Compliance, Management, Management Tips

Do you know how long you have to keep records relating to your employees and applicants?  The answer ranges from on to thirty years, depending on the type of record.

Recordkeeping requirements may not be the most exciting topic, but it is one that you need to know about.  Although you are not legally required to maintain personnel records per se, you do have to keep certain types of information about employees in order to comply with federal and state employment laws. 

     And if you do not maintain employment records as required, you could face fines or penalties assessed by the particular agency charged with enforcing the laws.  In addition, you will find it difficult to prove your compliance if an employee charges you with violations, for example, of wage and hour or discrimination laws.  So, you need to make sure your files are in order.  Find out which federal laws apply and what records you must keep.

Basic Recommendations

Federal record retention requirements specify how long you must keep certain employee information and generally range from one to thirty years, depending on the laws.  To comply with federal antidiscrimination and wage and hour laws, many experts suggest that general personnel information be kept for a minimum of five years from the date of entry into the applicant’s or employee’s file for compliance.  Other information, such as records of workplace accidents, may have to be retained for longer periods to show compliance.  (See below.)

     Some basic information on each employee, however, should be retained for the employee’s entire term of employment, plus at least five to ten years after termination.  Information in this category includes the employee’s initial job application, resume, offer of employment, employment agreements, performance evaluations, disciplinary actions, reasons for termination, records of benefits (such as pension and COBRA benefits), payroll information, and eligibility for reemployment.  This information may be necessary to make certain employment-related decisions, such as whether to rehire the employee, or to defend against challenges to employment decisions.  Employers that anticipate challenges to certain decisions should retain pertinent information until the threat of legal action clearly has passed, regardless of any document destruction policy.  In addition, you should consult state record retention  requirements to ensure compliance with those laws. 

     Below you will find a summary of some of the most common federal recordkeeping requirements, organized according to the retention period.  (Note that the following list does not include every federal requirement; additional requirements apply to federal contractors and are imposed by other laws such as tax, polygraph, and health information privacy laws.)

 Retention for One Year

·     Title VII of the Civil Rights Act of 1964 (Title VII):  If you have 15 or more employees, you must retain all personnel records for one year from the date of entry or the personnel action involved, whichever is later, including records pertaining to job applications, hiring, promotion, demotion, transfer, layoff, compensation, training programs, and termination.  If you have 100 or more employees, you must keep the latest annual Standard Form 100 (EEO-1) report at each reporting unit or at company or division headquarters. 

          You also are required to preserve all personnel records relevant to a charge of discrimination until the matter is fully concluded.  Relevant personnel records include personnel or employment records relating to the complaining party as well as allrecords pertaining to other employees, applicants, or candidates holding or applying for similar positions as the complaining employee or unsuccessful applicant or candidate. 

·     Americans with Disabilities Act (ADA):  If you have 15 or more employees, you have the same recordkeeping obligations as those imposed by Title VII.   (See above.)  The ADA also requires you to keep medical records confidential and separate from general personnel files. 

·     Age Discrimination in Employment Act (ADEA):  If you have 20 or more employees, you must retain for one year employment records such as those listed for Title VII, above, and also records of tests, physical examinations, and advertisements or notices regarding employment opportunities.  The ADEA further requires retention of written employee benefit plans and seniority or merit systems during their effective period and one year after termination of the plan or system.  As under Title VII, you also are required to preserve all personnel records relevant to a charge of discrimination until the matter is fully concluded. 

 Retention for Two Years

·     Equal Pay Act:  If you are engaged in commerce or in the production of goods for commerce, you must retain for two years records regarding payment of wages, wage rates, job evaluations and job descriptions, merit and seniority systems, collective bargaining agreements, pay practices, or other records that describe the basis for wage differentials to employees of the opposite sex within the same business establishment. 

·     Fair Labor Standards Act (FLSA): If you are an employer with employees engaged in commerce or the production of goods for commerce, you must retain the following records for at least two years:  wage rate tables; work time schedules, time cards or sheets, and records of amount of work produced by each employee; order, shipping, and billing records and records of additions to or deductions from wages paid. 

 Retention for Three Years

·     Age Discrimination in Employment Act:  If you have 20 or more employees, the ADEA also requires you to maintain payroll records for three years from the last date of entry. 

·     Fair Labor Standards Act: If you are covered by the FLSA (see above), you must maintain payroll records for three years from the last date of entry.  Collective bargaining agreements and employment contracts must be retained for three years from the last effective date.

·     Equal Pay Act:  Covered employers (see above) must maintain payroll records for three years from the last date of entry and also requires retention of collective bargaining agreements and employment contracts for three years from the last effective date. 

·     Family and Medical Leave Act (FMLA):  If you have 50 or more employees, or are a public agency or school, you must keep FMLA-related records for three years, including:  dates of FMLA leave taken by employees; hours of FMLA leave (if leave taken is less than a full day); copies of employee notification to the employer of the need for leave; copies of employer notices regarding employees’ rights and obligations when taking FMLA leave; copies of employer policies and practices describing benefits and leaves; premium payments for employee benefits; and records relating to disputes about the designation of leave as FMLA leave.  All medical information must be maintained in separate, confidential medical files. 

·     Immigration Reform and Control Act:  All employers are required to retain each employee’s Form I-9 (verifying employment eligibility) for three years from the date of hire or one year from the employee’s termination, whichever is later. 

 Retention for Five Years

·     Occupational Safety and Health Act (OSHA):   If you have 11 or more employees, you must maintain records of reports of employee job-related illnesses and injuries on OSHA Forms 300, 300A, and 301 for five years following the end of the year to which they relate.  (Certain employers in low-hazard industries are exempt from these recordkeeping requirements.) 

 Retention for Six Years

·     Employee Retirement Income Security Act (ERISA):  If you have benefit plans regulated by ERISA, you must keep records supporting and verifying any plan descriptions, annual reports, summary plan description, and any material modifications of the plan that you must file with the Department of Labor.  In addition, you must keep records that identify current employees who participate in the plan, and terminated employees who should receive benefits under the plan, for the purposes of determining what benefits are due and for what time period.  For example, these records would include the names and ages of participating current and terminated employees, marital status, length of service, and amount of pay.  Records pertaining to the plan descriptions and reports must be kept for at least six years after the filing date of the reports or descriptions they reflect. 

 Retention for 30 Years

·     Occupational Safety and Health Act:  All employers must retain medical records of employees exposed to toxic substances for at least the duration of employment plus 30 years. (This requirement does not apply to separately maintained health insurance records.)  In addition, records that OSHA requires regarding employee exposure must be retained for at least 30 years.  Analyses using exposure or medical records also must be retained for at least 30 years. 

No records Equal No Protection

Why are these employment records so important?  In short, the records you are required to keep provide the means for state and federal agencies to measure compliance with various employment laws.  Therefore, if you do not maintain them as required, not only will you face fines and penalties, but your ability to prove compliance will be severely compromised.   For example, if you do not keep proper records of work hours as required by the FLSA, the Department of Labor typically relies on employee testimony to establish the number of hours worked. 

     Similarly, without proper records, an agency or court could assume that you have not complied with the employment laws to which the records relate.  For example, in discrimination cases, if the employer has not preserved  records that support a particular employment action, a court may infer that the missing records would have contained evidence substantiating the discrimination claim.  Accordingly, you should make sure to follow the basic records retention requirements and review your records periodically to ensure compliance.