Record-keeping: It's Time to Double-Check Your Procedures

In an era where employment laws continue to evolve, an important, but often overlooked, aspect of legal compliance is an employer's record-keeping procedures. It is not unusual for an employer that is being investigated by a governmental agency in charge of enforcing an employment statute to run afoul of the record-keeping requirements. Sometimes a record-keeping violation can lead an investigator down the path of discovering significant compliance issues not directly connected to the original complaint; most notably, in failure-to-hire or promotion cases.

In addition to the federal statutes reviewed below, employers should check their state law requirements for record-retention provisions and the statute of limitations, including deadlines for tort-type claims, which are increasingly prevalent in today's employment litigation. It should also be noted that where an employer discovers there are federal or state laws specifying different record-retention periods for the same records, the employer should comply with the longer period under either law. As a practical matter, record-retention requirements are extended when records are involved in either administrative or court proceedings, in which case the employer should retain those records for the duration of the litigation until final resolution, including the running of the time limits applicable for appeal. The record-keeping retention provisions reviewed below relate to laws that are largely applicable to the most significant number of employers. Additional record-keeping duties may apply, depending upon specific state law or regulations, such as safety procedures or other specifications applying to particular industries or hiring certain types of workers.

Statute

Retention Period and Type of Records

I. Age Discrimination in Employment Act (29 U.S.C. 629; 29 C.F.R. 1627.3

Three years from date of personnel action

Payroll or other records containing name, address, birth date, occupation, pay rate and weekly compensation.

One year from date of personnel action

Any personnel records regarding: hiring, including job applications, resum's, job inquiries, and refusal to hire; promotion, demotion, transfer, selection for training, layoff, recall or discharge; job orders submitted to employment agencies or labor unions for recruitment; test papers, results from employment tests; results of physical exams; and job advertisement and notices to the public.

Duration of plan plus one year

Employee benefit plans, seniority and merit systems.

90 days after personnel action

Application forms and other pre-employment records of applicants for temporary positions.

II. Americans With Disabilities Act (42 U.S.C. 12101; 29 C.F.R. 1627) and Title VII of the Civil Rights Act of 1964 (2000e-8c; 29 C.F.R. 1602)

One year from date of personnel action

All personnel-related records, including application forms, resum's, other hiring records; records regarding promotion, demotion, transfer, layoff, discharge, pay rates or other compensation terms, and requests for reasonable accommodations.

Until final disposition

Personnel records concerning any discrimination charge brought by any agency or individual.

Two years or period of applicant's apprenticeship, whichever is longer

Criteria of the selection for apprenticeship programs in a recognized trade or craft; a chronological list of all applicants' names, addresses, dates of application, gender, minority group class; and any test papers or interview records in which hiring decisions were made.

One year of completing statutorily required apprenticeship

Any report or record made by report form.

One year

Employers having 100 or more employees (the EEO1 form).

Three years from date created

Records relating to reports required of higher-education institutions.

III. Employee Retirement Income Security Act (29 U.S.C. 1027; 29 C.F.R. 2520)

Six years

Basic information supporting plan documents, including vouchers, worksheets, receipts and applicable resolutions.

Six years from the date of such action

Records relating to alleged breach, violation, failure to correct omission or, where deliberate fraud, concealment of violation, discovery of violation occurs.

IV. Equal Pay Act and Fair Labor Standards Act (29 U.S.C. 206(d)(1); 29 U.S.C. 211; 29 C.F.R. 516.5)

Three years

Payroll records, collective bargaining agreements (relating to payments specifically not included in regular rate, irregular work hours and piece rates or commissions for retail or service employees), individual contracts, written agreements under the FLSA, sales and purchase records, and certificates and notices of the Wage and Hour Administrator.

Two years

Supplementary basic records, including basic employment and earnings records; wage rate tables utilized to calculate straight time and overtime; worktime schedules; order, shipping and billing records; collective bargaining agreements; (EPA requirements) records of additions or deductions from wages paid; records used for determining costs; records explaining basis for payment of any wage differential to employees of the opposite sex.

Until termination of employment

Certificates of age.

Duration of training program.

Written training agreements, summaries of the applicants' qualifications, job criteria, interview records and identification of minority and female applicants.

V. Family Medical Leave Act (29 U.S.C. 2601 et seq., 29 C.F.R. Part 825 500

Three years for all records

(Note: FMLA records must be kept in separate, restricted access and confidential files apart from other employment-related records.)

Basic payroll identifying employment data; records of dates of FMLA leave by eligible employees; dates and hours of FMLA leave taken unless in full-day increments; copies of notices of leave submitted to employer and all FMLA notices distributed by employer; employer leave policies; records of disputes with employees regarding designation of FMLA leave.

VI. Immigration Reform and Control Act (8 U.S.C. 1324a, 8 C.F.R. 27a.2(b)(2)

Three years after date of hire or one year after date of termination, whichever is later

INS form I-9 employment Eligibility Verification Form.

VII. Employee Polygraph Protection Act (29 U.S.C. 208; 29 C.F.R. 801.30)

Three years from the date of testing

Written statement documenting specific incident or activity under investigation of grounds for testing a particular employee; records identifying the specific loss or injury and the employee's access to the affected person or property; written statement given to the employees and applicants identifying examination time and place; notices given examiner identifying the individual subject to examination; all test-related opinions, reports, or other records provided by the examiner to the employer; and records maintained by the examiner documenting the number of examinations conducted during each day of testing and duration of each test.

VIII. Labor Management Reporting and Disclosure (Landrum-Griffin) Act (29 U.S.C. 436; 29 C.F.R. 405.9)

Five years after report filed

All records relating to required labor management reports, including vouchers, worksheets, receipts and applicable resolutions

IX. Occupational Safety and Health Act (29 U.S.C. 657; 29 C.F.R. 1904)

Five years from the end of the year covered by the report

Log and summary of which records relate to occupational illnesses and injuries (OSHA form No. 200) and supplemental record for each occupational injury or illness; (OSHA form No. 101); annual summary of occupational injuries and illnesses.

Duration of employment plus 30 years unless OSHA regulations provide otherwise.

Records of medical examinations required by law.

Thirty years

Records of monitoring exposure to hazardous materials.

X. Department of Transportation, Drug and Alcohol Testing Regulations (49 C.F.R. 40.333(a)(1)(2)(3), 40.109)

Five years from date record
created

Alcohol tests indicating alcohol concentration of 0.02 or greater, verified positive drug test results, documentation of refusals to take applicable tests, including substituted or adulterated drug test results, reports submitted by substance abuse professionals, and follow-up tests and schedules for follow-up tests.

Three years

Drug and alcohol test results received from previous employers.

One year

Records of negative and cancelled tests.

XI. Uniformed Services Employment and Re-Employment Rights Act (38 U.S.C. 4322-4323; Proposed Regulations 20 C.F.R. 1002.311)

Indefinite period B ' no recordkeeping provisions or statute of limitations specified in law and the Courts are split on the applicable statute of limitations.

Records related to hiring, leave, re-employment and termination of individuals serving in U.S. uniformed services.

Conclusion

As one can see from the myriad employment statutes described above (which do not include all employment-related statutes that may apply to any particular employer or industry), there is a wide range of paperwork and retention periods to be complied with in order to avoid violations of the record-keeping requirements. If there is any doubt as to the application of the retention periods, an employer is advised to retain the records for the longer of the potential applicable period. If a retention period cannot be ascertained, retain the records until legal advice can be obtained.

Matthew C. Lonergan, a member of this newsletter's Board of Editors, practices almost exclusively in the area of labor relations and employment law on behalf of management. A member of Nashville's Boult, Cummings, Conners & Berry, PLLC, he has represented management throughout the country in the areas of collective bargaining negotiations, grievance and arbitration, employment discrimination litigation in both federal and state courts, the National Labor Relations Act, wrongful discharge, wage and hour law, and other employment-related areas. Matt also is experienced in ADR and mediation and has served as a mediator in employment litigation matters.

In an era where employment laws continue to evolve, an important, but often overlooked, aspect of legal compliance is an employer's record-keeping procedures. It is not unusual for an employer that is being investigated by a governmental agency in charge of enforcing an employment statute to run afoul of the record-keeping requirements. Sometimes a record-keeping violation can lead an investigator down the path of discovering significant compliance issues not directly connected to the original complaint; most notably, in failure-to-hire or promotion cases.

In addition to the federal statutes reviewed below, employers should check their state law requirements for record-retention provisions and the statute of limitations, including deadlines for tort-type claims, which are increasingly prevalent in today's employment litigation. It should also be noted that where an employer discovers there are federal or state laws specifying different record-retention periods for the same records, the employer should comply with the longer period under either law. As a practical matter, record-retention requirements are extended when records are involved in either administrative or court proceedings, in which case the employer should retain those records for the duration of the litigation until final resolution, including the running of the time limits applicable for appeal. The record-keeping retention provisions reviewed below relate to laws that are largely applicable to the most significant number of employers. Additional record-keeping duties may apply, depending upon specific state law or regulations, such as safety procedures or other specifications applying to particular industries or hiring certain types of workers.

Statute

Retention Period and Type of Records

I. Age Discrimination in Employment Act (29 U.S.C. 629; 29 C.F.R. 1627.3

Three years from date of personnel action

Payroll or other records containing name, address, birth date, occupation, pay rate and weekly compensation.

One year from date of personnel action

Any personnel records regarding: hiring, including job applications, resum's, job inquiries, and refusal to hire; promotion, demotion, transfer, selection for training, layoff, recall or discharge; job orders submitted to employment agencies or labor unions for recruitment; test papers, results from employment tests; results of physical exams; and job advertisement and notices to the public.

Duration of plan plus one year

Employee benefit plans, seniority and merit systems.

90 days after personnel action

Application forms and other pre-employment records of applicants for temporary positions.

II. Americans With Disabilities Act (42 U.S.C. 12101; 29 C.F.R. 1627) and Title VII of the Civil Rights Act of 1964 (2000e-8c; 29 C.F.R. 1602)

One year from date of personnel action

All personnel-related records, including application forms, resum's, other hiring records; records regarding promotion, demotion, transfer, layoff, discharge, pay rates or other compensation terms, and requests for reasonable accommodations.

Until final disposition

Personnel records concerning any discrimination charge brought by any agency or individual.

Two years or period of applicant's apprenticeship, whichever is longer

Criteria of the selection for apprenticeship programs in a recognized trade or craft; a chronological list of all applicants' names, addresses, dates of application, gender, minority group class; and any test papers or interview records in which hiring decisions were made.

One year of completing statutorily required apprenticeship

Any report or record made by report form.

One year

Employers having 100 or more employees (the EEO1 form).

Three years from date created

Records relating to reports required of higher-education institutions.

III. Employee Retirement Income Security Act (29 U.S.C. 1027; 29 C.F.R. 2520)

Six years

Basic information supporting plan documents, including vouchers, worksheets, receipts and applicable resolutions.

Six years from the date of such action

Records relating to alleged breach, violation, failure to correct omission or, where deliberate fraud, concealment of violation, discovery of violation occurs.

IV. Equal Pay Act and Fair Labor Standards Act (29 U.S.C. 206(d)(1); 29 U.S.C. 211; 29 C.F.R. 516.5)

Three years

Payroll records, collective bargaining agreements (relating to payments specifically not included in regular rate, irregular work hours and piece rates or commissions for retail or service employees), individual contracts, written agreements under the FLSA, sales and purchase records, and certificates and notices of the Wage and Hour Administrator.

Two years

Supplementary basic records, including basic employment and earnings records; wage rate tables utilized to calculate straight time and overtime; worktime schedules; order, shipping and billing records; collective bargaining agreements; (EPA requirements) records of additions or deductions from wages paid; records used for determining costs; records explaining basis for payment of any wage differential to employees of the opposite sex.

Until termination of employment

Certificates of age.

Duration of training program.

Written training agreements, summaries of the applicants' qualifications, job criteria, interview records and identification of minority and female applicants.

V. Family Medical Leave Act (29 U.S.C. 2601 et seq., 29 C.F.R. Part 825 500

Three years for all records

(Note: FMLA records must be kept in separate, restricted access and confidential files apart from other employment-related records.)

Basic payroll identifying employment data; records of dates of FMLA leave by eligible employees; dates and hours of FMLA leave taken unless in full-day increments; copies of notices of leave submitted to employer and all FMLA notices distributed by employer; employer leave policies; records of disputes with employees regarding designation of FMLA leave.

VI. Immigration Reform and Control Act (8 U.S.C. 1324a, 8 C.F.R. 27a.2(b)(2)

Three years after date of hire or one year after date of termination, whichever is later

INS form I-9 employment Eligibility Verification Form.

VII. Employee Polygraph Protection Act (29 U.S.C. 208; 29 C.F.R. 801.30)

Three years from the date of testing

Written statement documenting specific incident or activity under investigation of grounds for testing a particular employee; records identifying the specific loss or injury and the employee's access to the affected person or property; written statement given to the employees and applicants identifying examination time and place; notices given examiner identifying the individual subject to examination; all test-related opinions, reports, or other records provided by the examiner to the employer; and records maintained by the examiner documenting the number of examinations conducted during each day of testing and duration of each test.

VIII. Labor Management Reporting and Disclosure (Landrum-Griffin) Act (29 U.S.C. 436; 29 C.F.R. 405.9)

Five years after report filed

All records relating to required labor management reports, including vouchers, worksheets, receipts and applicable resolutions

IX. Occupational Safety and Health Act (29 U.S.C. 657; 29 C.F.R. 1904)

Five years from the end of the year covered by the report

Log and summary of which records relate to occupational illnesses and injuries (OSHA form No. 200) and supplemental record for each occupational injury or illness; (OSHA form No. 101); annual summary of occupational injuries and illnesses.

Duration of employment plus 30 years unless OSHA regulations provide otherwise.

Records of medical examinations required by law.

Thirty years

Records of monitoring exposure to hazardous materials.

X. Department of Transportation, Drug and Alcohol Testing Regulations (49 C.F.R. 40.333(a)(1)(2)(3), 40.109)

Five years from date record
created

Alcohol tests indicating alcohol concentration of 0.02 or greater, verified positive drug test results, documentation of refusals to take applicable tests, including substituted or adulterated drug test results, reports submitted by substance abuse professionals, and follow-up tests and schedules for follow-up tests.

Three years

Drug and alcohol test results received from previous employers.

One year

Records of negative and cancelled tests.

XI. Uniformed Services Employment and Re-Employment Rights Act (38 U.S.C. 4322-4323; Proposed Regulations 20 C.F.R. 1002.311)

Indefinite period B ' no recordkeeping provisions or statute of limitations specified in law and the Courts are split on the applicable statute of limitations.

Records related to hiring, leave, re-employment and termination of individuals serving in U.S. uniformed services.

Conclusion

As one can see from the myriad employment statutes described above (which do not include all employment-related statutes that may apply to any particular employer or industry), there is a wide range of paperwork and retention periods to be complied with in order to avoid violations of the record-keeping requirements. If there is any doubt as to the application of the retention periods, an employer is advised to retain the records for the longer of the potential applicable period. If a retention period cannot be ascertained, retain the records until legal advice can be obtained.

Matthew C. Lonergan, a member of this newsletter's Board of Editors, practices almost exclusively in the area of labor relations and employment law on behalf of management. A member of Nashville's Boult, Cummings, Conners & Berry, PLLC, he has represented management throughout the country in the areas of collective bargaining negotiations, grievance and arbitration, employment discrimination litigation in both federal and state courts, the National Labor Relations Act, wrongful discharge, wage and hour law, and other employment-related areas. Matt also is experienced in ADR and mediation and has served as a mediator in employment litigation matters.