For the record: FLSA, FMLA recordkeeping a challenge for employers
The federal Family and Medical Leave Act (FMLA) is a complicated law. Based on audience poll feedback in J. J. Keller FMLA webcasts, a large percentage of employers say that understanding the FMLA regulations is their most challenging task.
And with keeping track of employees’ leave dates, requesting and reviewing certifications, and watching for potential leave abuse, it’s easy to forget about the more low-key aspects of the law — like recordkeeping responsibilities.
Employers covered by the FMLA must keep the same records required by another complex federal law — the Fair Labor Standards Act (FLSA). How are the recordkeeping requirements of these two laws similar (yet different)?
FLSA records
Every employer covered by the FLSA must keep accurate information about nonexempt (“hourly”) employee hours worked and the wages earned. The following is a list of the basic records that an employer must maintain:
- Employee’s full name, and identifying symbol or number (such as an employee number) if the employer uses that symbol or number in place of the employee’s name on any time, work, or payroll records.
- Employee addresses, including zip codes.
- Employee birth dates, if younger than 19.
- Employee sex and occupation.
- Time and day of week when the employee’s workweek begins, as well as the hours worked each day and total hours worked each workweek.
- The basis on which the employer pays the employee’s wages.
- The employee’s regular hourly pay rate.
- The employee’s total daily or weekly straight-time earnings.
- The employee’s total overtime earnings for the workweek.
- All additions to or deductions from the employee’s wages.
- The total wages paid to the employee each pay period.
- The date of payment and the pay period covered by the payment.
Despite the detail needed, there is no required form or format for how an employer maintains these records. Employers must generally maintain FLSA records for at least two or three years, depending on the record.
Employers will also likely want to keep such records for exempt (“salaried”) employees as well, after all, they can also be entitled to FMLA leave. Such records may be beneficial in determining employee eligibility and available hours in cases of FMLA leave for intermittent or reduced schedule situations. Additionally, some state laws require that such records be kept for exempt workers.
FMLA records
In addition to records required by the FLSA, the FMLA further requires that employers keep track of time employees have taken as FMLA leave. The law also requires employers to preserve notices to and from employees concerning FMLA leave. Some of these documents include the following:
- Eligibility and rights & responsibilities notices,
- Designation notices,
- Certifications of health care providers for employees’ own serious health conditions,
- Certification for employees’ family members’ serious health conditions,
- Certifications of qualifying exigencies for military family leave,
- Certifications for the serious injury or illness of covered servicemembers, and
- Fitness for duty certifications.
Employers must keep FMLA records for at least three years. They must keep records with personal medical information confidential and separate from the general personnel file.
Other documentation
While not required by either the FLSA or FMLA, a best practice is to document employees’ performance and disciplinary issues. While employees are not protected by the FMLA if they would otherwise be terminated or disciplined, employers should have evidence of legitimate, non-leave-related reasons for taking a negative employment action. This evidence could mean the difference between a win or loss in court.
Key to remember: Employers must know which FLSA and FMLA-related records they need to keep and for how long, and what they need to keep confidential.
