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

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	Payroll Employers subject to any of the provisions of the Montana Minimum Wage Law are required to maintain payroll records for employees subject to minimum wage or minimum wage and overtime provisions. The records must contain the following information with respect to each employee: Name in full, and on the same record, the employee's identifying symbol or number if such is used in place of name on any time, work, or payroll records; Home address, including ZIP code; Date of birth; Sex and occupation in which employed (sex may be indicated by use of the prefixes Mr., Mrs., or Miss); Time of day and day of week on which the employee's workweek begins; if the employee is part of a workforce or employed in or by an establishment all of whose workers have a workweek beginning at the same time on the same day, a single notation of the time of the day and beginning day of the workweek for the whole workforce or establishment will suffice; Regular hourly rate of pay and length of pay period; Hours worked each workday and total hours worked each workweek; Total daily or weekly straight-time earnings or wages; Total weekly overtime compensation; Total additions to or deductions from wages paid each pay period (every employer making additions to or deductions from wages shall also maintain, in individual employee accounts, a record of the dates, amounts, and nature of the items which make up the total additions and deductions); Total wages paid each pay period; and Date of payment and the pay period covered by payment. Montana Administrative Rule 24.16.6102(1)
	Employers must also contain payroll records with respect to bona fide executive, administrative, and professional employees. These records must contain the following information with respect to each such employee: Name in full, and on the same record, the employee's identifying symbol or number if such is used in place of name on any time, work, or payroll records; Home address, including ZIP code; Date of birth; Sex and occupation in which employed (sex may be indicated by use of the prefixes Mr., Mrs., or Miss); Time of day and day of week on which the employee's workweek begins; if the employee is part of a workforce or employed in or by an establishment all of whose workers have a workweek beginning at the same time on the same day, a single notation of the time of the day and beginning day of the workweek for the whole workforce or establishment will suffice; Total wages paid each pay period; Date of payment and the pay period covered by payment; and The basis on which wages are paid. Montana Administrative Rule 24.16.6102(2)
	Each employer shall preserve for at least three years the following records: From the last date of entry, all payroll or other records containing the employee information and data required under the two sections above; From their last effective date, all written: Collective bargaining agreements and any amendments or additions thereto; Plans, trusts, and employment contracts; and Individual contracts or collective bargaining agreements; Sales and purchase records including the total dollar volume of sales or business; From the date of last entry, all basic time and earnings cards or sheets of the employer on which are entered the daily starting and stopping time of individual employees, or of separate workforces, or the individual employee's daily, weekly, or pay period amounts of work accomplished (for example, units produced) when those amounts determine in whole or in part the pay period earning or wages of those employees; Wage rate tables from their last effective date; Worktime schedules from their last effective date; and Records of additions to or deductions from wages paid from the date of last entry including: All employee purchase orders or assignments made by employees; All copies of addition or deduction statements furnished employees; and All records used by the employer in determining the original cost, operating and maintenance cost, and depreciation and interest charges, if such costs and charges are involved in the additions to or deductions from wages paid. Montana Administrative Rule 24.16.6102(4)
	Deductions In addition to keeping other records required above, an employer who makes deductions from the wages of his employees for board, lodging, or other facilities furnished to them by the employer, or who furnished such facilities to as an addition to wages, shall maintain and preserve records substantiating the cost of furnishing each class of facility. Separate records of the cost of each facility furnished to an employee must be kept. Additionally, employers making deductions for meals or who furnish meals to their employees as an addition to wages shall maintain and preserve records that show the following for each meal served: Menu price (if the employer is operating a restaurant type operation), Type of meal, Cost of meals to employee, Date meal was furnished, Total cost to employee for the meals each workweek, and Signature of the employee indicating the meal was actually consumed by the employee. Montana Administrative Rule 24.16.6102(7)
	Differences in wage rates An employer of any employees subject to different minimum wage rates of pay who elects to pay less than an amount arrived at by applying the highest applicable minimum rate for all hours worked in any workweek, shall, in addition to any employee information and data required to be kept above, maintain and preserve payroll or other records containing the following information and data with respect to each of those employees: The minimum rate of pay required to be paid for each different type of employment in which each employee was engaged during the workweek; The basis on which wages are paid for each such different type of employment; The piece rate, if any, for each operation on each type of goods upon which the employee has worked under each such different applicable minimum rate of pay and the number of pieces worked upon at such piece rates; The total hours or fractions thereof worked that workweek by each such employee in employment covered by each such different applicable minimum rate; and The total wages due each such employee at straight time for the hours worked in each such different type of employment including any amounts earned in excess of the applicable minimum rate of pay. Montana Administrative Rule 24.16.6102(8)
	Individuals employed under special certificates With respect to persons employed as learners, apprentices, messengers, or full-time students employed outside of their school hours in any retail or service establishment or handicapped workers at special minimum hourly rates under special certificates, employers shall maintain and preserve records containing the same information and data required with respect to other employees employed in the same occupations. In addition, each employer shall segregate on payroll or pay records the names and required information and data with respect to those learners, apprentices, messengers (and handicapped workers and students), employed under special certificates. A symbol or letter shall also be placed before each such name on the payroll or pay records indicating that, that person is a "learner," "apprentice," "messenger," "student," or "handicapped worker" employed under a special certificate. Montana Administrative Rule 24.16.6102(9)
	Public contractors' records Contractors and subcontractors on public works projects must keep payroll records for at least three years after the completion of work on the project. If a wage violation complaint is filed, the contractor or subcontractor must provide the employee's payroll records to the Department of Labor and Industry within five days of receiving the payroll request from the department. Montana Code §§18-2-422, 18-2-423
	Unemployment For unemployment purposes, employers must keep employment and payroll records for each employee for five years. For each pay period, those records must show: The beginning and ending dates; The total wages for employment in such pay period; and The number and date of weeks in which there were one or more employees. For each employee, those records must show: The employee's full name; The employee's Social Security number; The employee's wages for each pay period, showing separately: Money wages payable including special payments or constructive payment of wages; Reasonable cash value of remuneration by the employer in any medium other than cash; Estimated or actual amount of gratuities received from persons other than employer; and Special payments of any kind, including annual bonuses, gifts, prizes, etc.; The date(s) the employee was hired, rehired, or returned to work after a temporary layoff; The date(s) employment was terminated by layoff, quit, discharge, or death; The cause of any termination; The method of compensation, by specifying whether the employee is paid: A salary; A commission; On an hourly basis; On a by-piece basis or other variable rate basis; or If on a fixed daily basis, the employee's daily rate and the customarily scheduled days per week prevailing in the establishment for the employee's occupation; and Documents supporting employee expense reimbursements. Employers must also keep evidence of business ownership including, but not limited to, partnership agreements and documents issued or acknowledgments by the secretary of state. Montana Code §39-51-603, Montana Administrative Rule 24.11.2704
Accessible Records	State employees Montana's Employee Records Management Policy covers all state positions in Montana's executive branch except elected officials, the personal staff of elected officials, and those employed by the Montana University System and the Montana State Fund. Under this policy, a state employee has access to all of his or her employee personnel records. A personnel record includes: Pre-employment information (resumes, references, interview questions, etc.); Compensation, job history, and timekeeping records; Employee accident reports and worker's compensation claims; I-9 forms; W-4 forms; Benefit plans and employee medical records (including disability accommodation requests and supporting documents, and any record that contains genetic information); Performance appraisals; Disciplinary action records; Background check information; Office policies/documents signed by employee; and Awards and acknowledgments. Agencies may require that a request for an employee's personnel information be in writing. An employee may file a written response to information contained in the employee's personnel records. The employee's response must be filed within 10 working days of the date on which the employee is made aware of the information by the agency. The written response becomes a permanent part of the employee's personnel record. Other persons may access an employee’s personnel record only if there is a job-related purpose, the employee has granted written permission, or if a valid court order grants access. An agency shall inform the employee when a valid court order has been received directing access to an employee's personnel record. Additionally, the following information about state employees is open to all members of the public upon request: Employee's name; Position title; Dates and duration of employment; Salary; and Claims for vacation, holiday, or sick leave pay, except that the reason for taking leave is confidential and may not be disclosed. Montana Administrative Rules 2.21.6606, 2.21.6615
Inaccessible Records	Employee personnel records covered under Montana Administrative Rule 2.21.6615 do not include documents, information, or other evidence developed as part of an investigation. If an investigation results in disciplinary action, the disciplinary action record is an employee personnel record. Investigations include, but are not limited to, grievances, violations of agency rules, policies, and procedures, or matters that may result in civil or criminal liability. Montana Administrative Rule 2.21.6612