Q: What types of employment records must be retained by employers?
A: There are a number of federal statutes that address the length of time that employers must retain certain employment records. While this article is not intended to provide an exhaustive discussion of all such laws (and does not address any applicable state statutes), some of the more notable federal requirements are as follows:
Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) require that all employers subject to those statutes "make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed" [42 U.S.C. � 2000e-8(c)]. Such records include, for example, employment applications and any other documents relating to the hiring of employees, as well as requests for reasonable accommodation; records relating to promotion, demotion, transfer, layoff or termination; rates of pay; or other terms of compensation. Employers must keep these records for one year from the date of making the record or the personnel action involved, whichever is later. If a charge of discrimination has been filed with the EEOC or state agency, all personnel records relating to the charge, including records relating to similarly situated employees, must be retained until final disposition of the charge.
The Age Discrimination in Employment Act (ADEA), which prohibits discrimination against individuals age 40 or older, has its own record-keeping requirements. Like Title VII and the ADA, the ADEA requires that employers maintain personnel and employment records relating to job applications, resumes or any other form of employment inquiry submitted to an employer, including records pertaining to the failure or refusal to hire an individual, for one year from the date of the personnel action. The ADEA has additional record-keeping requirements. It requires that employers retain for one year records relating to any advertisements or notices to the public or to employees relating to job openings, promotions, training programs or opportunities for overtime work. It also requires that employers maintain for one year any records relating to job orders submitted by the employer to an employment agency or other organization for the recruitment of personnel, and the results of any physical examination where such examination is considered in connection with any personnel action. The ADEA also requires that employers retain for three years payroll records that contain each employee's name, address, date of birth, occupation, rate of pay and compensation earned per week.
The Fair Labor Standards Act (FLSA), which governs, among other things, the payment of wages to employees, requires that employers maintain for a period of three years individual employment contracts, collective bargaining agreements and payroll records that contain information on employees' name, home address, gender, occupation, and hours worked each day and week (if nonexempt), total daily or weekly earnings, overtime compensation, basis of overtime computation, total wages each pay period, payment date and pay period. The FLSA also requires that employers maintain for two years records to substantiate the payroll documents, such as time cards, work time schedules and wage rate tables, as well as additions to and deductions from wages.
The Family and Medical Leave Act (FMLA) provides that all employers maintain for a period of three years the dates and hours of FMLA leave taken by all eligible employees. Employers must also retain for that period of time all notices of FMLA leave provided by employees to the employer, copies of FMLA notices provided to employees and any documents relating to the employer's policies and practices concerning FMLA.
The Immigration Reform and Control Act (IRCA) requires that all employees complete a Form I-9, which demonstrates that the employee is eligible to work in the United States. Employers must keep all I-9 forms for a period of three years from the employee's date of hire or one year after the employee's termination, whichever is later.
Again, this is not meant to be an exhaustive list of all record-keeping requirements. Employers must be aware of these and any other requirements so as not to run afoul of them in their maintenance of employment records.
Additional reporting by Michael Lungaretti
Note: The information in this column is provided by the author, not Entrepreneur.com. All answers are general in nature, not legal advice and not warranted or guaranteed. Readers are cautioned not to rely on this information. Because laws change over time and in different jurisdictions, it is imperative that you consult an attorney in your area regarding legal matters and an accountant regarding tax matters.
Larry Rosenfeld is co-chair of the national labor and employment practice of the law firm Greenberg Traurig LLP. A frequent writer and lecturer on employment law topics, Rosenfeld is experienced in the areas of federal laws pertaining to employment issues, EEOC, ADA, termination matters, employment liability and the Fair Labor Standards Act.