Federal & State Regulations | Recordkeeping - Florida | J. J. Keller® Compliance Network

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

Under Florida provisions, employers are to, upon request, provide copies of certain personnel records of employees and former employees to other employers. Information contained in the records may include, but is not limited to, disciplinary matters and any reason for termination. Any employer releasing such records pursuant to this chapter shall be considered to be acting in good faith and may not be held liable for information contained in such records, absent a showing that the employer maliciously falsified such records.

Records to be kept on file
Wage and Hour/Payroll	Unemployment To comply with unemployment compensation laws, employers must keep certain work records for five years. These records must contain the following information for each employee: Name and Social Security number; Place of employment; Beginning and ending dates of each pay period and dates on which work was performed during each pay period; Amount of remuneration paid to each worker for each pay period and dates of payment; Dates hired, re-hired, and returned to work after temporary separation from work, and the dates of separation; Separately recorded special payments of any kind, including bonuses, gifts, prizes, etc..; and The address of each location where payroll records are maintained. Unemployment insurance.—Employers must keep true and accurate work records. FL Stat §443.171(5), F.A.C. §60BB-2.032
Wage and Hour/Payroll	Farm labor contractors' records Farm labor contractors must maintain daily field records for each employee paid by the contractor. These records must reflect the hours worked by each employee for the contractor and, if paid by unit, the number of units harvested and the amount paid per unit. FL Stat. §450.33(10)
Accessible Records	School district employees A public school system employee, or any person designated in writing by the employee, must be permitted to examine his or her own personnel file. The employee must be permitted to copy any information contained in the file. FL Stat. §1012.31(2)(e)
	A copy of materials to be added to a public school system employee's personnel file must be provided to the employee either by certified mail, return receipt requested, to the employee's address of record, or by personal delivery. The employee's signature on a copy of the materials to be filed is proof of receipt but does not necessarily indicate agreement with the contents. An employee has the right to respond in writing to any materials added to his or her personnel file and such response must be attached to the file copy. An employee has the right to request that the superintendent or the superintendent's designee make an informal inquiry regarding any material the employee believes to be false. The official who makes the inquiry must append to the material a written report of the findings. FL Stat. §1012.31(2)(c)-(d)
	Public employee drug testing If drug testing is conducted on a public employee based on reasonable suspicion, the employer must detail in writing the circumstances for such reasonable suspicion. A copy of this document must be provided to the employee upon request. The original documentation must be retained by the employer for at least one year. FL Stat. §112.0455(8)(u)
	Health care facility employees A licensed health care facility may maintain limited-access performance-evaluation records on its employees. These records should be open to inspection by the employee and his or her supervisor. FL Stat. §395.3025(9)
	Community college employees Employee-performance evaluation records for community college employees should be open to inspection by employees and their supervisors. FL Stat §1012.81
	State university employees Records containing information reflecting academic evaluations of a state university employee's performance shall be open to inspection only by the employee and his or her supervisors. FL Stat. §1012.91(1)(a) For state universities, records of any disciplinary proceeding, including any evidence presented, shall be open to inspection by the employee at all times. FL Stat. §1012.91(1)(c) Records maintained for the purposes of any grievance proceeding brought by a state university employee for enforcement of a collective bargaining agreement or contract shall be open to inspection only by the employee and by officials of the university conducting the grievance proceeding until a final decision is made in the proceeding. FL Stat. §1012.91(1)(d)
	Law enforcement officers and correctional officers Law enforcement officers and correctional officers have the right to review their official personnel files at any reasonable time under the supervision of the designated records custodian. These officers may attach to the personnel file a concise statement made in response to any items included in the file identified by the officer as derogatory. Copies of such items must be made available to the officer. FL Stat. §112.533(3)