Federal & State Regulations | Recordkeeping - Delaware

Summary of differences between federal and state regulations

Federal

The federal Fair Labor Standards Act does not require employers to allow employees access to their personnel files. This access is generally a matter of agreement between an employer and an employee (or the employee’s representative). However, while federal law does not, some state laws require employers to allow employees access to their files. Employers need to comply with the state laws.

Federal OSHA requires that employers must allow employees and their designated representatives to inspect and/or copy records pertaining to exposure to hazardous substances. Access must be provided in a reasonable time, place, and manner. Access must be provided within 15 days working days. No costs may be incurred for the first provision, but subsequent provisions may be charged reasonable, nondiscriminatory administrative costs.

Employees and former employees must be guaranteed access to their individual OSHA 301 forms. Employee representatives will be provided access to the “information about the case” section of the OSHA 301 form in establishments where they represent employees.

The federal Health Insurance Portability and Accountability Act (HIPAA) requires employers to allow employees to inspect and/or obtain a copy of any of their own protected health information that is used to make decisions about them. Employers must provide access within 30 days of receiving a request if the information is maintained or accessible onsite. If not, employers have 60 days to act. Employers must arrange for a mutually convenient time and place for employee access. Employers may charge reasonable, cost-based fees for copying information, but not for retrieving or handling the information or processing a request.

State

Records to be kept on file
Wage and Hour/Payroll	Payroll For at least three years maintain records containing the following information for each employee: Name, Address, Occupation, Rate of pay, Amount paid each pay period, and Hours worked each day and each work week. 19 DE Code §§ 907, §1108
Wage and Hour/Payroll	Unemployment For the purposes of unemployment compensation, maintain records for each employee showing: Name; Social Security number; Gross and taxable wages for each payroll period; and All other payments made to the employee, including holiday pay, bonuses, board and lodging, tips, and dismissal pay. Maintain these records for a period of the previous four calendar years. 19 DE Code §3125, Delaware Department of Labor Unemployment Insurance Handbook for Employers: Section V(B)
Accessible Records	Public and private employees Employees of both public and private employers may view personnel records upon request. These records may include: Application(s) for employment, Wage or salary information, Notices of commendations, Warning or discipline, Authorization for a deduction or withholding of pay, Fringe benefit information, Leave records, Employment history with the employer, including salary information, Job title, Dates of changes, Retirement record, Attendance records, Performance evaluations, and Medical records. These records shall be available during regular business hours when there is sufficient time available during the course of a regular business day to inspect the file in question. The employer may require employees to inspect such records during their free time. Additionally, employers may require employees to file a written form to request access to their personnel files. The form should only be used to identify the requesting employee and assist the employer in providing the correct records to meet the employee's need. Employees should indicate in the written request either the purpose for inspecting their files or the particular parts of their personnel records they wish to inspect. 19 DE Code §§ 731, 732
	Location and frequency of file inspection Employees needn't be allowed to remove their personnel files or sections of such files, nor must they be allowed to copy the file. Employees are allowed to take notes on their files. Employers may require employees to inspect their personnel files while in the presence of a designated official. The employer must allow sufficient time for employees to inspect their files. Except for reasonable cause, employers may limit inspection of personnel files to once every calendar year. 19 DE Code §733
	Adding employee statement to file If employees disagree with any information contained in their personnel records, they should be allowed to submit a written statement explaining their position. The statement should be included in their personnel file or medical records and should accompany any transmittal of the records to a third party. 19 DE Code §734
	MSDSs Upon request, employers must allow employees or their designated representatives to review material safety data sheets. 16 DE Code §2407
	Hazardous chemical exposure Employees that may be exposed to hazardous chemicals must be informed of such exposure and shall have access to the workplace chemical list and material safety data sheets for the hazardous chemicals. 16 DE Code §2415
Inaccessible Records	“Personnel file” does not include: Employee records relating to an investigation of a possible criminal offense, Letters of reference Documents being developed or prepared for use in civil, criminal, or grievance procedures; Materials used by the employer to plan for future operations; or Information available to the employee under federal Fair Credit Reporting Act. 19 DE Code §731

Effective January 1, 2015, employers must shred or destroy employee records with personal identifying information when they no longer retain the records. Personal identifying information includes the employee’s name in combination with data such as, for example, date of birth, social security number, passport number, driver’s license, insurance policy number, account number, or credit/debit card number. This provision applies to hard copy or electronic records. HB 294, Ch 423, §736.