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Companies require many records, and the Human Resources function is no stranger to records, record retention, confidentiality, and so on. Some applicable employment laws have recordkeeping mandates while others only implement rules if the company creates certain records. A company should document employee-related activities and its hiring process as needed to prevent liability in court cases, and records should be as up-to-date and easy to read as possible.
Companies require many records, and the Human Resources function is no stranger to records, record retention, confidentiality, and so on. Some applicable employment laws have recordkeeping mandates. Others do not, but have rules if the company creates certain records.
Records are involved before the first employee is hired, all the way through termination.
The importance of recordkeeping is demonstrated in the following stories:
These are taken from actual court cases where the employer prevailed due to sufficient documentation. Not only should employers document the hiring and the termination process, but everything in between.
Good hiring documentation starts with a job description of the position. A job description should accurately reflect the skills and abilities necessary to successfully fill the position. This documentation is crucial to the hiring process. It will help screen out unqualified applicants and justify hiring decisions.
After an employee is on board, it is important to document training records, changes in skills required by the job, additional skills that are acquired, further education, changes in job duties, transfers, promotions, demotions, and so on. Documentation of training records can help an employer determine when someone is qualified — and when the employee is not. Documentation also serves to justify the reasons for pay differentials.
When an employer is sued, courts are reluctant to second-guess the processes the employer used in making its employment decisions. Even poor business decisions are generally left to stand if the decisions are not illegal. Documentation may be the thing that saves a company.
Creating a written policy for managing employee records is essential. The goals set should be straight-forward and simple. The system should encompass employment history, medical data, confidential information, payroll records, I-9 forms, and protected status information.
Employee files should be centrally located and appropriately secured. Additionally, employers should develop criteria to evaluate requests to view records, using the “need to know” standard. It’s important to review state laws on file access and record retention.
Most common-sense suggestions and tips are not mandatory; rather, they provide guidance to assist employers in accurately completing and maintaining employee records.
Employers should document employee-related activities as needed. Employee records should be objective and contain verifiable facts. In court cases, the burden of proof lies with the employer. The side with the best and most accurate documentation usually tips the scale in civil court cases, barring other circumstances.
Poor procedures for employment documentation can come with significant costs, including liability in legal proceedings.
Essential records must be maintained if the actual need exists. These include records legally required for workers’ compensation, insurance audits, and government inspections. Keeping records such as policy statements, training for management and employees, safety and health meetings, information distributed to employees, and medical arrangements is encouraged, and in some cases, required by federal or state agencies.
Employee records should be legible. If making handwritten notes, remember that the person making the notes may not be the same person who reads the notes several years later. Ensure that all records and notations are easy to read and understand.
Be sure the information in the records is not burdened with acronyms or jargon that can lead to confusion or are generally not useful.
Avoid fonts that are too small to read or are otherwise overly complicated and fancy. Margins and paragraph size and spacing should also lend themselves to easy reading. Shorter paragraphs are easier to digest than longer ones.
Headers can also help to break up longer content into smaller, easier to understand bits of information.
Employee records need to be complete and up to date. Changes in processes, procedures, equipment, materials, and personnel should be reflected in pertinent records as these changes occur. Additionally, employee training, medical examinations, and information required to be provided as a condition of employment should be noted in employee personnel files as soon as possible.
Original information should never be removed from a file. Records may be lost or misplaced, or simply never returned to the master file. To prevent lost records, establish a procedure for tracking information removed from a file.
Most employee records may be kept either on paper, microfiche, magnetic tape, or electronically. If the relevant information is always available during working hours and is retrievable on demand, these are usually acceptable forms of records storage.
Keeping a duplicate hard copy of employee records in a secure location for easy access in case electronic access is impaired is usually advisable. It’s a good idea to shred all out-of-date personnel file records twice — ribbon and crosshatch.
Employee/personnel files are a depository of many different documents, each with specific information, required by certain laws, and with different retention periods. The personnel file is the place where many records are customarily kept.
To see what should be in an employee file (and what should not), refer to the following table. The list is not all inclusive, but represents some of the more common documents required by federal laws. The retention periods listed are the minimum. Many employers retain documents for longer periods.
Record | Retention | Location | Law | Regulation | Other |
---|---|---|---|---|---|
Job applications, resumes | One year | Personnel file | Title VII of the Civil Rights Act (Title VII), Americans with Disabilities Act (ADA) | 29 CFR 1602.14 | If SSN is included, keep it secure |
Medical information (i.e., accommodation requests, injury reports) | One year (ADA), duration of employment +30 years (OSHA), six years (HIPAA) | Separate from personnel file | ADA, Occupational Safety and Health Act (OSHA), Health Insurance Portability and Accountability Act (HIPAA) | 29 CFR 1630.14, 1910.1020; 45 CFR Part 164, Subpart E | Must remain confidential and secure |
Family & medical leave (such as medical certifications) | Three years | Separate confidential file for medical info (amount of leave taken can be in personnel file) | Family and Medical Leave Act (FMLA) | 29 CFR 825.500 | Medical information must be kept separate and confidential |
Time sheets | Two years | Personnel file | Fair Labor Standards Act (FLSA) | 29 CFR 516.6 | Keep safe and accessible |
Payroll records | Three years | Personnel file | FLSA | 29 CFR 516.5 | Keep safe and accessible |
I-9 Forms | Three years after hire or one year after termination, whichever is later | None prescribed | Immigration and Nationality Act (INA) | 8 CFR 274a.2 | Good idea to keep in a separate file |
W-4s (copies) or other tax records | Four years | Personnel file | Federal Insurance Contributions Act (FICA), Federal Unemployment Tax Act (FUTA) | 26 CFR Part 1 | If SSN is included, keep it secure |
Records of employment actions (hires, promotion, termination, etc.) | One year from the date of the action | Personnel file | Title VII, ADA, Age Discrimination in Employment Act (ADEA), Pregnancy Discrimination Act (PDA) | 29 CFR 1602.14 | If a legal action occurs, keep records for the duration of the action |
Health and welfare plan documents (i.e., SPDs and SMMs) | Six years | Separate from personnel file if medical information is included | Employee Retirement Income Security Act (ERISA), HIPAA | For ERISA, see 107 of the law; 45 CFR 164.530 | For Form 5500, that’s six years after filing, for a total of eight years |
The table below provides an overview of the major federal human resources (HR)-related recordkeeping requirements. States may also require records, posting, and reporting beyond the information presented here, such as unemployment or workers’ compensation information. The table provides a quick reference on whether:
Note: The quick reference table is applicable in most circumstances. However, certain factual scenarios may or may not require records to be kept. Likewise, certain posting and notice requirements depend on specific factual situations. For specific questions or circumstances, please consult each act for guidance.
Recordkeeping | Postings | Reporting/Notice |
---|---|---|
Affirmative Action | ||
Yes | No | Standard From 100 (EEO-1) |
Age Discrimination in Employent Act (ADEA) | ||
Yes | Yes | No |
Americans with Disabilities Act | ||
Yes | Yes | No |
Civil Rights Act, Title VII | ||
Yes | Yes | Standard From 100 (EEO-1) |
Consolidated Omnibus Budget Reconciliation Act (COBRA) | ||
Yes | No | Form 5500 |
Davis-Bacon Act | ||
Yes | Yes | WD-10 Form |
Employee Polygraph Protection Act | ||
Yes | Yes | Notice to examinee and disclosure of results |
Employee Retirement Income Security Act (ERISA) | ||
Yes | No | Form 5500, Form M-1, SPD, and SMM |
Employment of minors | ||
Yes | Yes (part of FLSA poster) | Varies by state |
Equal Pay Act | ||
Yes | No | No |
Executive Order 11246 | ||
See “Affirmative Action” | ||
Executive Order 13201 | ||
No | Yes | No |
Fair Credit Reporting Act | ||
No | No | Requirements for notice |
Fair Labor Standards Act (FLSA) | ||
Yes | Yes | WH-200, WH-201, WH-202 |
Family and Medical Leave Act (FMLA) | ||
Yes | Yes | Requirements for notice, WH-381 |
Health Insurance Portability and Accountability Act (HIPAA) | ||
Yes | No | Requirements for notice |
Injury and Illness Recordkeeping (OSHA) | ||
Yes | Yes, post Form 300A | Form 300, 300A, and 301 |
Immigration Reform and Control Act (IRCA) | ||
Retention of Form I-9 | No | Form I-9 |
Internal Revenue Service (IRS) | ||
Yes | Yes | Various tax forms |
Labor Management Reporting and Disclosure Act (LMRDA) | ||
Yes | No | Form LM-10 |
Medical records (OSHA) | ||
Yes | No | No |
Rehabilitation Act of 1973 | ||
No | No | No |
Social Security Administration (SSA) | ||
Yes | No | Yes, to address issues such as Medicare |
Military leave (USERRA) | ||
No | Yes | No |
Walsh-Healy Act | ||
No | No | No |
Employee personnel files need to be organized in a manner that allows for quick access. The information also needs to be as complete as possible. These files may be the source of a company’s defense if an employee ever decided to lodge a complaint with a government agency, or file a suit against the employer.
If the information is not accessible, or is not complete, an agency representative may see this as the employer’s noncompliance with a law, or a judge may see this as a lack of evidence of fair employee treatment.
Human resources (HR) professionals retain several documents in a personnel file. In addition, there is some information that organizations may want to think twice about retaining in the same file.
Personnel files should contain information that serves as a legal basis for employment-related decisions such as hiring, promotion, pay, termination, demotion, or training opportunities. This could consist of applications, resumes, performance evaluations, training session rosters or certificates, job descriptions, or documents containing disciplinary information.
HR professionals should organize the files such that some information is not included in the general employee files, but kept separate and confidential.
Keep the following separate:
Equal employment opportunity records — Employment decisions should not be based on protected classes such as sex, race, age, religion, national origin, color, or veteran’s status. Any documents that have information on protected status, whether it’s immigration forms, notes taken during interviewing, or medical leave information, should be kept separate.
Medical information — Employment decisions should not be made based on disability status; in addition, there may include medical privacy issues. Documents that include medical information may be health care benefit claims, the results of pre-employment or safety-related medical tests, or the results of drug tests.
Garnishment information — Employment decisions should not be made based on garnishment orders. Court-ordered garnishment information should be kept separate.
I-9 forms — If the DOL happened to be looking at a company’s employee files, and the I-9s are included in those files, the DOL could review the I-9s along with everything else in the file. With this in mind, an employer may want to keep immigration information separate.
Not everyone should be allowed access to any type of employee file. Only those persons who have a need to know about the information contained in the files should have access.
In addition, those who make such decisions on who is hired, promoted, demoted, or terminated, should not have access to documents that reveal protected status. This may include managers and supervisors who may be involved in such employment decisions.
Under the federal Title VII of the Civil Rights Act, protected status includes gender, national origin, age, disability, race/color, religion, sexual orientation, gender identity, and genetic information. States may also add to this to include hair styles, marital status, ancestry, military status, use or nonuse of a lawful product off the employer’s premises during nonworking hours, marijuana use, and vaccine status.
Employees have the right to access occupational exposure records under the federal Occupational Safety and Health Act.
Many states have laws that provide employees with a right to access and review their personnel files. The laws and their provisions vary from state to state, so human resources (HR) professionals need to be aware of the provisions in applicable states.
Typically, these laws allow that an HR representative or a supervisor be present when an employee accesses a personnel file. This is to be sure the integrity of the file and its contents remain intact. If the employee disagrees with something contained in the file, the employee is free to lodge a complaint, which should also be filed.
Some state laws allow employees to obtain copies of the documents in personnel files. If this is the case, an employer may want to be the one to make the copy and provide it to the employee. Some information sharing may violate privacy laws, so an employer may not want to include documents such as references or those relating to criminal investigations in the file.
Every covered employer must keep certain records for each non-exempt worker. The Fair Labor Standards Act (FLSA) requires no particular form, but does require that the records include certain identifying information about the employee and data about the hours worked and the wages earned.
The following is a listing of the basic records:
Employers need not keep such records for exempt employees. It may be beneficial, however, to do so, since such records are evidence of wages and hours, and can be called into question should a suit be brought alleging inappropriate pay or scheduling activities.
Some companies require all employees, exempt and non-exempt to use the same type of forms for recording hours and wages. Others have separate forms for exempt employees. One such form is commonly referred to as an exception report. This report indicates exempt employees’ normal working hours and is provided to such employees every pay period. If the employees have deviated from the indicated schedule, they are given the opportunity to make changes on the form to reflect the deviations. The form is signed whether changes were made or not.
Wages subject to federal employment taxes include all pay given to an employee for services performed. The pay may be in cash or in other forms. It includes salaries, vacation allowances, bonuses, commissions, and fringe benefits. It does not matter how the payments are measured or made. Also, compensation paid to a former employee for services performed while still employed is wages subject to employment taxes.
To know how much income tax to withhold from employees’ wages, the employer should have a Form W-4, Employee’s Withholding Allowance Certificate, on file for each employee.
The Internal Revenue Service (IRS) requires that employers keep all records of employment taxes for at least four years. These should be available for IRS review.
Records should include:
Below are the basic requirements for federal tax and wage reporting compliance:
States may also have additional employer reporting requirements.
Good hiring documentation starts with a job description of the position. A job description should accurately reflect the skills and abilities necessary to successfully fill the position. This documentation is crucial to the hiring process. It will help screen out unqualified applicants and justify hiring decisions.
After an employee is on board, it is important to document training records, changes in skills required by the job, additional skills that are acquired, further education, changes in job duties, transfers, promotions, demotions, and so on. Documentation of training records can help an employer determine when someone is qualified — and when the employee is not. Documentation also serves to justify the reasons for pay differentials.
When an employer is sued, courts are reluctant to second-guess the processes the employer used in making its employment decisions. Even poor business decisions are generally left to stand if the decisions are not illegal. Documentation may be the thing that saves a company.
Creating a written policy for managing employee records is essential. The goals set should be straight-forward and simple. The system should encompass employment history, medical data, confidential information, payroll records, I-9 forms, and protected status information.
Employee files should be centrally located and appropriately secured. Additionally, employers should develop criteria to evaluate requests to view records, using the “need to know” standard. It’s important to review state laws on file access and record retention.
Most common-sense suggestions and tips are not mandatory; rather, they provide guidance to assist employers in accurately completing and maintaining employee records.
Employers should document employee-related activities as needed. Employee records should be objective and contain verifiable facts. In court cases, the burden of proof lies with the employer. The side with the best and most accurate documentation usually tips the scale in civil court cases, barring other circumstances.
Poor procedures for employment documentation can come with significant costs, including liability in legal proceedings.
Essential records must be maintained if the actual need exists. These include records legally required for workers’ compensation, insurance audits, and government inspections. Keeping records such as policy statements, training for management and employees, safety and health meetings, information distributed to employees, and medical arrangements is encouraged, and in some cases, required by federal or state agencies.
Employee records should be legible. If making handwritten notes, remember that the person making the notes may not be the same person who reads the notes several years later. Ensure that all records and notations are easy to read and understand.
Be sure the information in the records is not burdened with acronyms or jargon that can lead to confusion or are generally not useful.
Avoid fonts that are too small to read or are otherwise overly complicated and fancy. Margins and paragraph size and spacing should also lend themselves to easy reading. Shorter paragraphs are easier to digest than longer ones.
Headers can also help to break up longer content into smaller, easier to understand bits of information.
Employee records need to be complete and up to date. Changes in processes, procedures, equipment, materials, and personnel should be reflected in pertinent records as these changes occur. Additionally, employee training, medical examinations, and information required to be provided as a condition of employment should be noted in employee personnel files as soon as possible.
Original information should never be removed from a file. Records may be lost or misplaced, or simply never returned to the master file. To prevent lost records, establish a procedure for tracking information removed from a file.
Most employee records may be kept either on paper, microfiche, magnetic tape, or electronically. If the relevant information is always available during working hours and is retrievable on demand, these are usually acceptable forms of records storage.
Keeping a duplicate hard copy of employee records in a secure location for easy access in case electronic access is impaired is usually advisable. It’s a good idea to shred all out-of-date personnel file records twice — ribbon and crosshatch.
Employers should document employee-related activities as needed. Employee records should be objective and contain verifiable facts. In court cases, the burden of proof lies with the employer. The side with the best and most accurate documentation usually tips the scale in civil court cases, barring other circumstances.
Poor procedures for employment documentation can come with significant costs, including liability in legal proceedings.
Essential records must be maintained if the actual need exists. These include records legally required for workers’ compensation, insurance audits, and government inspections. Keeping records such as policy statements, training for management and employees, safety and health meetings, information distributed to employees, and medical arrangements is encouraged, and in some cases, required by federal or state agencies.
Employee records should be legible. If making handwritten notes, remember that the person making the notes may not be the same person who reads the notes several years later. Ensure that all records and notations are easy to read and understand.
Be sure the information in the records is not burdened with acronyms or jargon that can lead to confusion or are generally not useful.
Avoid fonts that are too small to read or are otherwise overly complicated and fancy. Margins and paragraph size and spacing should also lend themselves to easy reading. Shorter paragraphs are easier to digest than longer ones.
Headers can also help to break up longer content into smaller, easier to understand bits of information.
Employee records need to be complete and up to date. Changes in processes, procedures, equipment, materials, and personnel should be reflected in pertinent records as these changes occur. Additionally, employee training, medical examinations, and information required to be provided as a condition of employment should be noted in employee personnel files as soon as possible.
Original information should never be removed from a file. Records may be lost or misplaced, or simply never returned to the master file. To prevent lost records, establish a procedure for tracking information removed from a file.
Most employee records may be kept either on paper, microfiche, magnetic tape, or electronically. If the relevant information is always available during working hours and is retrievable on demand, these are usually acceptable forms of records storage.
Keeping a duplicate hard copy of employee records in a secure location for easy access in case electronic access is impaired is usually advisable. It’s a good idea to shred all out-of-date personnel file records twice — ribbon and crosshatch.
Employee/personnel files are a depository of many different documents, each with specific information, required by certain laws, and with different retention periods. The personnel file is the place where many records are customarily kept.
To see what should be in an employee file (and what should not), refer to the following table. The list is not all inclusive, but represents some of the more common documents required by federal laws. The retention periods listed are the minimum. Many employers retain documents for longer periods.
Record | Retention | Location | Law | Regulation | Other |
---|---|---|---|---|---|
Job applications, resumes | One year | Personnel file | Title VII of the Civil Rights Act (Title VII), Americans with Disabilities Act (ADA) | 29 CFR 1602.14 | If SSN is included, keep it secure |
Medical information (i.e., accommodation requests, injury reports) | One year (ADA), duration of employment +30 years (OSHA), six years (HIPAA) | Separate from personnel file | ADA, Occupational Safety and Health Act (OSHA), Health Insurance Portability and Accountability Act (HIPAA) | 29 CFR 1630.14, 1910.1020; 45 CFR Part 164, Subpart E | Must remain confidential and secure |
Family & medical leave (such as medical certifications) | Three years | Separate confidential file for medical info (amount of leave taken can be in personnel file) | Family and Medical Leave Act (FMLA) | 29 CFR 825.500 | Medical information must be kept separate and confidential |
Time sheets | Two years | Personnel file | Fair Labor Standards Act (FLSA) | 29 CFR 516.6 | Keep safe and accessible |
Payroll records | Three years | Personnel file | FLSA | 29 CFR 516.5 | Keep safe and accessible |
I-9 Forms | Three years after hire or one year after termination, whichever is later | None prescribed | Immigration and Nationality Act (INA) | 8 CFR 274a.2 | Good idea to keep in a separate file |
W-4s (copies) or other tax records | Four years | Personnel file | Federal Insurance Contributions Act (FICA), Federal Unemployment Tax Act (FUTA) | 26 CFR Part 1 | If SSN is included, keep it secure |
Records of employment actions (hires, promotion, termination, etc.) | One year from the date of the action | Personnel file | Title VII, ADA, Age Discrimination in Employment Act (ADEA), Pregnancy Discrimination Act (PDA) | 29 CFR 1602.14 | If a legal action occurs, keep records for the duration of the action |
Health and welfare plan documents (i.e., SPDs and SMMs) | Six years | Separate from personnel file if medical information is included | Employee Retirement Income Security Act (ERISA), HIPAA | For ERISA, see 107 of the law; 45 CFR 164.530 | For Form 5500, that’s six years after filing, for a total of eight years |
The table below provides an overview of the major federal human resources (HR)-related recordkeeping requirements. States may also require records, posting, and reporting beyond the information presented here, such as unemployment or workers’ compensation information. The table provides a quick reference on whether:
Note: The quick reference table is applicable in most circumstances. However, certain factual scenarios may or may not require records to be kept. Likewise, certain posting and notice requirements depend on specific factual situations. For specific questions or circumstances, please consult each act for guidance.
Recordkeeping | Postings | Reporting/Notice |
---|---|---|
Affirmative Action | ||
Yes | No | Standard From 100 (EEO-1) |
Age Discrimination in Employent Act (ADEA) | ||
Yes | Yes | No |
Americans with Disabilities Act | ||
Yes | Yes | No |
Civil Rights Act, Title VII | ||
Yes | Yes | Standard From 100 (EEO-1) |
Consolidated Omnibus Budget Reconciliation Act (COBRA) | ||
Yes | No | Form 5500 |
Davis-Bacon Act | ||
Yes | Yes | WD-10 Form |
Employee Polygraph Protection Act | ||
Yes | Yes | Notice to examinee and disclosure of results |
Employee Retirement Income Security Act (ERISA) | ||
Yes | No | Form 5500, Form M-1, SPD, and SMM |
Employment of minors | ||
Yes | Yes (part of FLSA poster) | Varies by state |
Equal Pay Act | ||
Yes | No | No |
Executive Order 11246 | ||
See “Affirmative Action” | ||
Executive Order 13201 | ||
No | Yes | No |
Fair Credit Reporting Act | ||
No | No | Requirements for notice |
Fair Labor Standards Act (FLSA) | ||
Yes | Yes | WH-200, WH-201, WH-202 |
Family and Medical Leave Act (FMLA) | ||
Yes | Yes | Requirements for notice, WH-381 |
Health Insurance Portability and Accountability Act (HIPAA) | ||
Yes | No | Requirements for notice |
Injury and Illness Recordkeeping (OSHA) | ||
Yes | Yes, post Form 300A | Form 300, 300A, and 301 |
Immigration Reform and Control Act (IRCA) | ||
Retention of Form I-9 | No | Form I-9 |
Internal Revenue Service (IRS) | ||
Yes | Yes | Various tax forms |
Labor Management Reporting and Disclosure Act (LMRDA) | ||
Yes | No | Form LM-10 |
Medical records (OSHA) | ||
Yes | No | No |
Rehabilitation Act of 1973 | ||
No | No | No |
Social Security Administration (SSA) | ||
Yes | No | Yes, to address issues such as Medicare |
Military leave (USERRA) | ||
No | Yes | No |
Walsh-Healy Act | ||
No | No | No |
Employee personnel files need to be organized in a manner that allows for quick access. The information also needs to be as complete as possible. These files may be the source of a company’s defense if an employee ever decided to lodge a complaint with a government agency, or file a suit against the employer.
If the information is not accessible, or is not complete, an agency representative may see this as the employer’s noncompliance with a law, or a judge may see this as a lack of evidence of fair employee treatment.
Human resources (HR) professionals retain several documents in a personnel file. In addition, there is some information that organizations may want to think twice about retaining in the same file.
Personnel files should contain information that serves as a legal basis for employment-related decisions such as hiring, promotion, pay, termination, demotion, or training opportunities. This could consist of applications, resumes, performance evaluations, training session rosters or certificates, job descriptions, or documents containing disciplinary information.
HR professionals should organize the files such that some information is not included in the general employee files, but kept separate and confidential.
Keep the following separate:
Equal employment opportunity records — Employment decisions should not be based on protected classes such as sex, race, age, religion, national origin, color, or veteran’s status. Any documents that have information on protected status, whether it’s immigration forms, notes taken during interviewing, or medical leave information, should be kept separate.
Medical information — Employment decisions should not be made based on disability status; in addition, there may include medical privacy issues. Documents that include medical information may be health care benefit claims, the results of pre-employment or safety-related medical tests, or the results of drug tests.
Garnishment information — Employment decisions should not be made based on garnishment orders. Court-ordered garnishment information should be kept separate.
I-9 forms — If the DOL happened to be looking at a company’s employee files, and the I-9s are included in those files, the DOL could review the I-9s along with everything else in the file. With this in mind, an employer may want to keep immigration information separate.
The table below provides an overview of the major federal human resources (HR)-related recordkeeping requirements. States may also require records, posting, and reporting beyond the information presented here, such as unemployment or workers’ compensation information. The table provides a quick reference on whether:
Note: The quick reference table is applicable in most circumstances. However, certain factual scenarios may or may not require records to be kept. Likewise, certain posting and notice requirements depend on specific factual situations. For specific questions or circumstances, please consult each act for guidance.
Recordkeeping | Postings | Reporting/Notice |
---|---|---|
Affirmative Action | ||
Yes | No | Standard From 100 (EEO-1) |
Age Discrimination in Employent Act (ADEA) | ||
Yes | Yes | No |
Americans with Disabilities Act | ||
Yes | Yes | No |
Civil Rights Act, Title VII | ||
Yes | Yes | Standard From 100 (EEO-1) |
Consolidated Omnibus Budget Reconciliation Act (COBRA) | ||
Yes | No | Form 5500 |
Davis-Bacon Act | ||
Yes | Yes | WD-10 Form |
Employee Polygraph Protection Act | ||
Yes | Yes | Notice to examinee and disclosure of results |
Employee Retirement Income Security Act (ERISA) | ||
Yes | No | Form 5500, Form M-1, SPD, and SMM |
Employment of minors | ||
Yes | Yes (part of FLSA poster) | Varies by state |
Equal Pay Act | ||
Yes | No | No |
Executive Order 11246 | ||
See “Affirmative Action” | ||
Executive Order 13201 | ||
No | Yes | No |
Fair Credit Reporting Act | ||
No | No | Requirements for notice |
Fair Labor Standards Act (FLSA) | ||
Yes | Yes | WH-200, WH-201, WH-202 |
Family and Medical Leave Act (FMLA) | ||
Yes | Yes | Requirements for notice, WH-381 |
Health Insurance Portability and Accountability Act (HIPAA) | ||
Yes | No | Requirements for notice |
Injury and Illness Recordkeeping (OSHA) | ||
Yes | Yes, post Form 300A | Form 300, 300A, and 301 |
Immigration Reform and Control Act (IRCA) | ||
Retention of Form I-9 | No | Form I-9 |
Internal Revenue Service (IRS) | ||
Yes | Yes | Various tax forms |
Labor Management Reporting and Disclosure Act (LMRDA) | ||
Yes | No | Form LM-10 |
Medical records (OSHA) | ||
Yes | No | No |
Rehabilitation Act of 1973 | ||
No | No | No |
Social Security Administration (SSA) | ||
Yes | No | Yes, to address issues such as Medicare |
Military leave (USERRA) | ||
No | Yes | No |
Walsh-Healy Act | ||
No | No | No |
Employee personnel files need to be organized in a manner that allows for quick access. The information also needs to be as complete as possible. These files may be the source of a company’s defense if an employee ever decided to lodge a complaint with a government agency, or file a suit against the employer.
If the information is not accessible, or is not complete, an agency representative may see this as the employer’s noncompliance with a law, or a judge may see this as a lack of evidence of fair employee treatment.
Human resources (HR) professionals retain several documents in a personnel file. In addition, there is some information that organizations may want to think twice about retaining in the same file.
Personnel files should contain information that serves as a legal basis for employment-related decisions such as hiring, promotion, pay, termination, demotion, or training opportunities. This could consist of applications, resumes, performance evaluations, training session rosters or certificates, job descriptions, or documents containing disciplinary information.
HR professionals should organize the files such that some information is not included in the general employee files, but kept separate and confidential.
Keep the following separate:
Equal employment opportunity records — Employment decisions should not be based on protected classes such as sex, race, age, religion, national origin, color, or veteran’s status. Any documents that have information on protected status, whether it’s immigration forms, notes taken during interviewing, or medical leave information, should be kept separate.
Medical information — Employment decisions should not be made based on disability status; in addition, there may include medical privacy issues. Documents that include medical information may be health care benefit claims, the results of pre-employment or safety-related medical tests, or the results of drug tests.
Garnishment information — Employment decisions should not be made based on garnishment orders. Court-ordered garnishment information should be kept separate.
I-9 forms — If the DOL happened to be looking at a company’s employee files, and the I-9s are included in those files, the DOL could review the I-9s along with everything else in the file. With this in mind, an employer may want to keep immigration information separate.
Not everyone should be allowed access to any type of employee file. Only those persons who have a need to know about the information contained in the files should have access.
In addition, those who make such decisions on who is hired, promoted, demoted, or terminated, should not have access to documents that reveal protected status. This may include managers and supervisors who may be involved in such employment decisions.
Under the federal Title VII of the Civil Rights Act, protected status includes gender, national origin, age, disability, race/color, religion, sexual orientation, gender identity, and genetic information. States may also add to this to include hair styles, marital status, ancestry, military status, use or nonuse of a lawful product off the employer’s premises during nonworking hours, marijuana use, and vaccine status.
Employees have the right to access occupational exposure records under the federal Occupational Safety and Health Act.
Many states have laws that provide employees with a right to access and review their personnel files. The laws and their provisions vary from state to state, so human resources (HR) professionals need to be aware of the provisions in applicable states.
Typically, these laws allow that an HR representative or a supervisor be present when an employee accesses a personnel file. This is to be sure the integrity of the file and its contents remain intact. If the employee disagrees with something contained in the file, the employee is free to lodge a complaint, which should also be filed.
Some state laws allow employees to obtain copies of the documents in personnel files. If this is the case, an employer may want to be the one to make the copy and provide it to the employee. Some information sharing may violate privacy laws, so an employer may not want to include documents such as references or those relating to criminal investigations in the file.
Employees have the right to access occupational exposure records under the federal Occupational Safety and Health Act.
Many states have laws that provide employees with a right to access and review their personnel files. The laws and their provisions vary from state to state, so human resources (HR) professionals need to be aware of the provisions in applicable states.
Typically, these laws allow that an HR representative or a supervisor be present when an employee accesses a personnel file. This is to be sure the integrity of the file and its contents remain intact. If the employee disagrees with something contained in the file, the employee is free to lodge a complaint, which should also be filed.
Some state laws allow employees to obtain copies of the documents in personnel files. If this is the case, an employer may want to be the one to make the copy and provide it to the employee. Some information sharing may violate privacy laws, so an employer may not want to include documents such as references or those relating to criminal investigations in the file.
Every covered employer must keep certain records for each non-exempt worker. The Fair Labor Standards Act (FLSA) requires no particular form, but does require that the records include certain identifying information about the employee and data about the hours worked and the wages earned.
The following is a listing of the basic records:
Employers need not keep such records for exempt employees. It may be beneficial, however, to do so, since such records are evidence of wages and hours, and can be called into question should a suit be brought alleging inappropriate pay or scheduling activities.
Some companies require all employees, exempt and non-exempt to use the same type of forms for recording hours and wages. Others have separate forms for exempt employees. One such form is commonly referred to as an exception report. This report indicates exempt employees’ normal working hours and is provided to such employees every pay period. If the employees have deviated from the indicated schedule, they are given the opportunity to make changes on the form to reflect the deviations. The form is signed whether changes were made or not.
Wages subject to federal employment taxes include all pay given to an employee for services performed. The pay may be in cash or in other forms. It includes salaries, vacation allowances, bonuses, commissions, and fringe benefits. It does not matter how the payments are measured or made. Also, compensation paid to a former employee for services performed while still employed is wages subject to employment taxes.
To know how much income tax to withhold from employees’ wages, the employer should have a Form W-4, Employee’s Withholding Allowance Certificate, on file for each employee.
The Internal Revenue Service (IRS) requires that employers keep all records of employment taxes for at least four years. These should be available for IRS review.
Records should include:
Below are the basic requirements for federal tax and wage reporting compliance:
States may also have additional employer reporting requirements.