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Summary of differences between federal and state regulations
Federal
The 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 | Wage/hour Every employer who employs two or more employees at any one time within a calendar year shall furnish each employee a statement of the hours worked by the employee and of the wages paid to him listing deductions made each pay period. The employer must keep records of these statements. Michigan Compiled Laws §408.414a |
Payroll An employer must maintain a record for each employee which indicates the following information about the employee for at least three years:
Employers need not maintain payroll records indicating the total hours worked by, or furnish wage statements of hours worked by:
Michigan Compiled Laws §408.479 | |
Public contractors' records Every contractor and subcontractor shall keep an accurate record showing the name and occupation of and the actual wages and benefits paid to each construction mechanic employed by him in connection with a public contract. “Construction mechanic” means a skilled or unskilled mechanic, laborer, worker, helper, assistant, or apprentice working on a state project but shall not include executive, administrative, professional, office, or custodial employees. Michigan Compiled Laws §408.555 | |
Unemployment For unemployment purposes, each employing unit must keep records, including wage and employment records, for at least six years after the calendar year in which the remuneration to which they relate was paid or, if not paid, was due. Such records shall show all of the following for each worker:
These records must be kept in such form as to make it possible to determine all of the following from an inspection thereof with respect to any worker:
Michigan Compiled Laws §421.13, Michigan Administrative Code R. 421.115 | |
Accessible Records | Public and private employees Employees and former employees of both public and private employers are entitled to review their personnel records, upon a written request which describes the personnel record. Review of the files may be done periodically, but generally not more than two times in a calendar year, unless otherwise provided by law or collective bargaining agreement. The review shall take place at a location reasonably near the employee's place of employment and during normal office hours. If a review during normal office hours would require an employee to take time off from work with that employer, then the employer shall provide some other reasonable time for the review. The employer may allow the review to take place at another time or location that would be more convenient to the employee. “Personnel record” means a record kept by the employer that identifies the employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee's qualifications for employment, promotion, transfer, additional compensation, or disciplinary action. Copies Employees and former employees may obtain a copy of their personnel file information. An employer may charge a fee for providing a copy. The fee must be limited to the actual incremental cost of duplicating the information. If an employee demonstrates that he or she is unable to review his or her personnel record at the employing unit, then the employer, upon that employee's written request, shall mail a copy of the requested record to the employee. Employee statements of disagreement If there is a disagreement with information contained in a personnel record, removal or correction of that information may be mutually agreed upon by the employer and the employee. If an agreement is not reached, the employee may submit a written statement explaining the employee's position. The statement shall not exceed five sheets of 8-1/2-inch by 11-inch paper and shall be included when the information is divulged to a third party and as long as the original information is a part of the file. Removal of outdated information An employer shall review a personnel record before releasing information to a third party and, except when the release is ordered in a legal action or arbitration to a party in that legal action or arbitration, delete disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than four years old. Providing notice to employees An employer or former employer shall not divulge a disciplinary report, letter of reprimand, or other disciplinary action to a third party without providing the employee or former employee written notice. The written notice to the employee shall be by first-class mail to the employee's last known address, and shall be mailed on or before the day the information is divulged from the personnel record. This notice requirement shall not apply if:
Michigan Compiled Laws §423.501 et seq. |
Inaccessible Records | For the purposes of the above section, a “personnel record” shall not include:
Michigan Compiled Laws §423.501 |
If an employer has reasonable cause to believe that an employee is engaged in criminal activity which may result in loss or damage to the employer's property or disruption of the employer's business operation, and the employer is engaged in an investigation, then the employer may keep a separate file of information relating to the investigation. Upon completion of the investigation or after two years, whichever comes first, the employee shall be notified that an investigation was or is being conducted of the suspected criminal activity described in this section. Upon completion of the investigation, if disciplinary action is not taken, the investigative file and all copies of the material in it shall be destroyed. If the employer is a criminal justice agency which is involved in the investigation of an alleged criminal activity or the violation of an agency rule by the employee, the employer shall maintain a separate confidential file of information relating to the investigation. Upon completion of the investigation, if disciplinary action is not taken, the employee shall be notified that an investigation was conducted. If the investigation reveals that the allegations are unfounded, unsubstantiated, or disciplinary action is not taken, the separate file shall contain a notation of the final disposition of the investigation and information in the file shall not be used in any future consideration for promotion, transfer, additional compensation, or disciplinary action. Michigan Compiled Laws §423.509 |
State
Contact
Michigan Department of Consumer and Industry Services
Regulations
Michigan State Regulation §423.503
Federal
Contacts
Occupational Safety and Health Administration
U.S. Health and Human Services Department
Regulations
29 CFR 1910.1020(e) (OSHA)
45 CFR 164.524 (HIPAA)