Federal & State Regulations | Recordkeeping - Minnesota

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	Wage/hour Employers must keep a record of the following information with respect to each employee entitled to minimum wage and overtime pay under the Minnesota Fair Labor Standards Act: Name; Address; Social Security number; Occupation; Rate of pay; Deductions (taxes, insurance, union dues, etc.); Amount paid each pay period; A record of free meals accepted; Proof of age of minors employed; and Beginning and ending hours worked each day, including a.m. and p.m. designations, plus total hours worked each day and each work week. These records must be kept for three years in or near the premises where an employee works. Minnesota Statute §177.30, Minnesota Department of Labor & Industry: Payment for hours worked: Recordkeeping
	Public contracts In addition to the recordkeeping requirements above, employers that perform work on public works projects funded in whole or in part with state funds must furnish a certified payroll report with respect to the wages and benefits paid each employee during the preceding weeks. This report must specify for each employee: Identifying number; Prevailing wage master job classification; Total hours; Gross amount earned; Each deduction for taxes; Total deductions; Net pay for week; Dollars contributed per hour for each benefit, including name and address of administrator; Benefit account number; and Telephone number for health and welfare, vacation or holiday, apprenticeship training, pension, and other benefit programs. These records must be kept for three years after the contracting authority has made final payment on the public works project. Minnesota Statute §177.30, Minnesota Department of Labor & Industry: Payment for hours worked: Recordkeeping
	Unemployment To comply with unemployment insurance law requirements, employers must maintain certain records for eight years after the calendar year in which the compensation for the services was paid or payable. Thse records must show for each individual the following: Name; Social Security number; Days in which the individual performed personal services; Location where services were performed; Wages paid and wages due but not paid for personal services, showing separately: Money wages, excluding special payments; Wages paid and wages due but not paid, in any medium other than money, excluding special payments; Special payments such as bonuses, gifts, and prizes, showing separately money payments, other special payments, and the character of the payments; and Tips and gratuities paid to an employee by a customer and accounted for by the employee to the employer; Rate and base unit of pay; Amounts paid as allowances or reimbursement for travel or other activity pertaining to the furtherance of the employer's business which were not included as wages, showing each item of expense incurred during each pay period or calendar month; The date of separation and the reason, in detail, for the termination; The complete resident address of the employee; For each pay period: The beginning and ending dates of the period; The total amount of wages paid and wages due but not paid for personal services performed; and The date of payment; and For each calendar month or, if less, the established pay period of the employer, the hours spent performing services in employment and the hours spent performing noncovered employment. For services performed in both employment and noncovered employment within a pay period, the records must include the hours spent performing services in employment and the hours spent performing noncovered employment. For services performed within and without Minnesota, the records must include: The city or county and state in which the employer maintains a base of operations; The city or county and state from which the services are directed and controlled, if the employer does not have a base of operations in the states in which an individual performs services; and A list of the states in which the individual performs other than temporary or incidental services and the dates services were performed at each location. Minnesota Statute §268.186, Minnesota Administrative Rule 3315.1010
Accessible Records	Private employees Private employers must provide employees and former employees who have been separated from employment for less than one year access to their personnel records upon written request. "Personnel record" means: Any application for employment; Wage or salary history; Notices of commendation, warning, discipline, or termination; Authorization for a deduction or withholding of pay; Fringe benefit information; Leave records; and Employment history with the employer, including salary and compensation history, job titles, dates of promotions, transfers, and other changes, attendance records, performance evaluations, and retirement record. An employer is not required to provide an employee an opportunity to review the employee's personnel record if the employee has reviewed the personnel record during the previous six months; except that, upon separation from employment, an employee may review his or her personnel record once each year after separation for as long as the personnel record is maintained. Providing access and copies The employer must comply with a written request to view a personnel file no later than 7 working days after receipt of the request if the personnel record is located in this state, or no later than 14 working days after receipt of the request if the personnel record is located outside Minnesota. With respect to current employees, the personnel record or an accurate copy must be made available for review by the employee during the employer's normal hours of operation at the employee's place of employment or other reasonably nearby location, but need not be made available during the employee's working hours. The employer may require that the review be made in the presence of the employer or the employer's designee. After the review and upon the employee's written request, the employer shall provide a copy of the record to the employee. With respect to employees who are separated from employment, upon the employee's written request, the employer shall provide a copy of the personnel record to the employee. Providing a copy of the employee's personnel record to the employee satisfies the employer's responsibility to allow review of the personnel record. The employer may not charge a fee for the copy. Employee dispute of personnel record information If an employee of a private employer with at least 20 employees disputes specific information contained in the employee's personnel record the employer and the employee may agree to remove or revise the disputed information. If an agreement is not reached, the employee may submit a written statement specifically identifying the disputed information and explaining the employee's position. The employee's position statement may not exceed five written pages. The employee's position statement must be included along with the disputed information for as long as that information is maintained in the employee's personnel record. A copy of the position statement must also be provided to any other person who receives a copy of the disputed information from the employer after the position statement is submitted. Minnesota Stat. §§ 181.960, 181.961, 181.962
	Public employees Certain information about public employees, volunteers, independent contractors, and applicants is open to the general public. The following personnel data on current and former applicants for employment by a government entity is public: Veteran status, Relevant test scores, Rank on eligible list, Job history, Education and training, and Work availability. Names of applicants shall be private data except when certified as eligible for appointment to a vacancy or when applicants are considered by the appointing authority to be finalists for a position in public employment. The following personnel data on current and former employees, volunteers, and independent contractors of a government entity is public: Name; Employee identification number, which must not be the employee's Social Security number; Actual gross salary; Salary range; Contract fees; Actual gross pension; The value and nature of employer-paid fringe benefits; The basis for and the amount of any added remuneration, including expense reimbursement, in addition to salary; Job title and bargaining unit; Job description; Education and training background; Previous work experience; Date of first and last employment; The existence and status of any complaints or charges against the employee, regardless of whether the complaint or charge resulted in a disciplinary action; The final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis of the action, excluding data that would identify confidential sources who are employees of the public body; The terms of any agreement settling any dispute arising out of an employment relationship, including a buyout agreement (the agreement must include specific reasons for the agreement if it involves the payment of more than $10,000 of public money); Work location; A work telephone number; Badge number; Honors and awards received; and Payroll time sheets or other comparable data that are only used to account for employee's work time for payroll purposes, except to the extent that release of time sheet data would reveal the employee's reasons for the use of sick or other medical leave or other not-public data. Upon completion of an investigation of a complaint or charge against a public official, or if a public official resigns or is terminated from employment while the complaint or charge is pending, all data relating to the complaint or charge are public, unless access to the data would jeopardize an active investigation or reveal confidential sources. Public employer personnel data will not be public if it pertains to individuals employed as or applicants for employment as undercover law enforcement officers. The following data relating to employees of a secure treatment facility, employees of a state correctional facility, or employees of the Minnesota Department of Corrections directly involved in supervision of offenders in the community, shall not be disclosed to facility patients, corrections inmates, or other individuals who facility or correction administrators reasonably believe will use the information to harass, intimidate, or assault any of these employees: Place where previous education or training occurred, Place of prior employment, or Payroll timesheets or other comparable data, to the extent that disclosure of payroll timesheets or other comparable data may disclose future work assignments, home address or telephone number, the location of an employee during nonwork hours, or the location of an employee's immediate family members. Minnesota Stat. §13.43
	While public employer personnel information not considered public, it is available to individuals who are the subjects of such records. Upon request to a responsible authority or designee, an individual shall be informed whether the individual is the subject of stored data on individuals, and whether it is classified as public, private, or confidential. Upon further request, an individual who is the subject of stored private or public data on individuals shall be shown the data without any charge and, if desired, shall be informed of the content and meaning of that data. After an individual has been shown the private data and informed of its meaning, the data need not be disclosed to that individual for six months thereafter unless a dispute or action pursuant to this section is pending or additional data on the individual has been collected or created. The responsible authority or designee shall provide copies of the private or public data upon request by the individual subject of the data. The responsible authority or designee may require the requesting person to pay the actual costs of making and certifying the copies. The responsible authority or designee shall comply immediately, if possible, with any request to view or copy records, or within 10 days of the date of the request, excluding Saturdays, Sundays, and legal holidays, if immediate compliance is not possible. Minnesota Stat. §13.04
Inaccessible Records	For private employers, the term “personnel record” does not include: Written references respecting the employee, including letters of reference supplied to an employer by another person; Information relating to the investigation of a violation of a criminal or civil statute by an employee or an investigation of employee conduct for which the employer may be liable, unless and until: The investigation is completed and, in cases of an alleged criminal violation, the employer has received notice from the prosecutor that no action will be taken or all criminal proceedings and appeals have been exhausted; and The employer takes adverse personnel action based on the information contained in the investigation records; Education records that are maintained by an educational institution and directly related to a student; Results of employer testing, except that the employee may see a cumulative total test score for a section of the test or for the entire test; Information relating to the employer's salary system and staff planning, including comments, judgments, recommendations, or ratings concerning expansion, downsizing, reorganization, job restructuring, future compensation plans, promotion plans, and job assignments; Written comments or data of a personal nature about a person other than the employee, if disclosure of the information would constitute an intrusion upon the other person's privacy; Written comments or data kept by the employee's supervisor or an executive, administrative, or professional employee, provided the written comments or data are kept in the sole possession of the author of the record; Privileged information or information that is not discoverable in a workers' compensation, grievance arbitration, administrative, judicial, or quasi-judicial proceeding; Any portion of a written or transcribed statement by a coworker of the employee that concerns the job performance or job-related misconduct of the employee that discloses the identity of the coworker by name, inference, or otherwise; and Medical reports and records, including reports and records that are available to the employee from a health care services provider. Minnesota Stat. §181.960
	A private employer may deny an employee the right to review the employee's personnel record if the employee's request to review is not made in good faith. The burden of proof that the request to review is not made in good faith is on the employer. Minnesota Stat. §181.961 Subdivision 3
	When allegations of sexual or other types of harassment are made against a public employee, the employee does not have access to data that would identify the complainant or other witnesses if the responsible authority determines that the employee's access to that data would: Threaten the personal safety of the complainant or a witness, or Subject the complainant or witness to harassment. If a disciplinary proceeding is initiated against the employee, data on the complainant or witness shall be available to the employee as may be necessary for the employee to prepare for the proceeding. Minnesota Stat. §13.43 Subdivision 8