Recordkeeping - North Carolina | 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.

State

Contact

North Carolina Department of Labor

Regulations

NC General Statute – Chapter 126, Article 7 (§§126.23 to 126.28)
http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByArticle/Chapter_126/Article_7.html

NC General Statute – Chapter 95, Article 16 – Recordkeeping and reporting (§95.143)
http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_95/GS_95-143.html

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)

Records to be kept on file
Wage and Hour/Payroll	Wage/hour Every employer subject to the North Carolina Wage and Hour Act must keep records for certain employees not covered by the federal Fair Labor Standards Act (FLSA) for three years. These records must include the employee's: Full name; Home address, including ZIP code and phone number; Date of birth if under 20; Occupation in which employed or job title; Time of day and day of week the employee's workweek begins (a group of employees working the same workweek may have one record keeping for the entire group); Regular rate of pay; Hours worked each workday; Total hours worked each workweek; Total straight time earnings each workweek; Total overtime earnings each workweek; Total additions to or deductions from wages; Total gross wages paid each pay period; and Date of each payment. Employers must also keep the following records: Tip credits; Costs of meals, lodging, or other facilities; Start and end times for youth under age 18; Youth employment certificates; Wage deductions; Vacation and sick leave policies; Policies and procedures relating to promised wages; and Records required to compute wages. Note: Again, these recordkeeping requirements do not apply to employees covered by the FLSA. Additionally, employers are not obligated to keep these records on government employees; executive, administrative, or professional employees; outside salespersons; computer systems analysts, computer programmers, software engineers and other similarly skilled workers; drivers and mechanics; agricultural employees; domestics; volunteers; prison employees; models and actors; outdoor drama production workers; nonprofit summer camp employees; seafood employees; an employer's immediate family members; ridesharers; taxicab drivers; seamen; railroad and air carrier employees; automotive salespersons, mechanics and partsmen; salespersons employed by trailer, boat, and aircraft dealers; live-in child care workers; radio and television announcers, news editors, and chief engineers; or governmental seasonal recreational program employees. NC Stat. §§ 95-25.14, 95-25.15; 13 NCAC 12.0801, 12.0802
	Tipped employees Tips earned by a tipped employee may be counted as wages only up to the amount permitted in section 3(m) of the Fair Labor Standards Act, 29 U.S.C. 203(m), if the tipped employee is notified in advance, is permitted to retain all tips and the employer maintains accurate and complete records of tips received by each employee as such tips are certified by the employee monthly or for each pay period. Even if the employee refuses to certify tips accurately, tips may still be counted as wages when the employer complies with the other requirements of this section and can demonstrate by monitoring tips that the employee regularly receives tips in the amount for which the credit is taken. NC Stat. §95-25.3(f)
	Unemployment For unemployment, every employing unit must maintain records for each worker. These records must contain: The worker's name; The worker's Social Security number; The state or states in which the worker's services are performed; and, if any of the services are performed outside North Carolina and are not incidental to the services performed in North Carolina, the base of operations with respect to such services, or if there is no base of operations then the place from which the services are directed or controlled, and the worker's state of residence; The dates which the worker was hired, rehired, returned to work after temporary layoff, and separated from work; The reasons for the worker's separation from work; The wages paid for the worker's services and dates of such payments; Amounts paid to the worker as allowances or reimbursements for traveling or other business expenses, dates of such payments, and the amounts of such expenditures actually incurred and accounted for by the worker; and The number of hours the worker spends in employment. These records must be maintained in a manner so the following can be determined regarding each worker: Earnings by pay period weeks, if paid on a weekly basis, or if not so paid, then by calendar weeks; Whether any week was a week during which the worker worked less than the equivalent of three customary scheduled full-time days for the employing unit because of lack of work; Actual number of hours worked each day and total number of hours worked each week; and Time not worked for reasons other than lack of work. Where part or all of the employing unit’s accounting records are maintained by an automatic data processing system, the following must be provided by or with the system: Audit trails with supporting documents, General books of account containing a general ledger with source references which coincide with financial reports for reporting periods, and A description of the automatic data processing portion of the employing unit's accounting system. These records must be maintained for at least five years after the calendar year in which wages for such services are paid. NC Stat. §96-4(g)
Accessible Records	State employees State employees, former employees, and applicants for state employment are entitled to examine their personnel files, with some exceptions (listed in the Inaccessible Records section below). An employee, former employee, or applicant for employment who objects to material in his file may place in his file a statement relating to the material he considers to be inaccurate or misleading. An employee, former employee, or applicant for employment who objects to material in his file because he considers it inaccurate or misleading may seek the removal of such material from his file in accordance with the grievance procedure of that department, including appeal to the state Personnel Commission. NC Stat. §§ 126-24, 126-25
	County employees County employees/former employees or their duly authorized agents may examine all portions of the employee's personnel file, with some exceptions (listed in the Inaccessible Records section below). A licensed physician designated in writing by the employee may examine the employee's medical record. The following information with respect to each county employee and former employee is a matter of public record: Name; Age; Date of original employment or appointment to the county service; The terms of any contract by which the employee is employed whether written or oral, past and current, to the extent that the county has the written contract or a record of the oral contract in its possession; Current position; Title; Current salary (includes pay, benefits, incentives, bonuses, and deferred and all other forms of compensation paid by the employing entity); Date and amount of each increase or decrease in salary with that county; Date and type of each promotion, demotion, transfer, suspension, separation, or other change in position classification with that county; Date and general description of the reasons for each promotion with that county; Date and type of each dismissal, suspension, or demotion for disciplinary reasons taken by the county and, if the disciplinary action was a dismissal, a copy of the written notice of the final decision of the county setting forth the specific acts or omissions that are the basis of the dismissal; and The office to which the employee is currently assigned. Any person may have access to this information for the purpose of inspection, examination, and copying, during regular business hours. NC Stat. §153A-98
	City employees City employees/former employees or their duly authorized agents may examine all portions of the employee's personnel file, with some exceptions (listed in the Inaccessible Records section below). A licensed physician designated in writing by the employee may examine the employee's medical record. The following information with respect to each city employee and former employee is a matter of public record: Name; Age; Date of original employment or appointment to the service; The terms of any contract by which the employee is employed whether written or oral, past and current, to the extent that the city has the written contract or a record of the oral contract in its possession; Current position; Title; Current salary (includes pay, benefits, incentives, bonuses, and deferred and all other forms of compensation paid by the employing entity); Date and amount of each increase or decrease in salary with that municipality; Date and type of each promotion, demotion, transfer, suspension, separation, or other change in position classification with that municipality; Date and general description of the reasons for each promotion with that municipality; Date and type of each dismissal, suspension, or demotion for disciplinary reasons taken by the municipality; if the disciplinary action was a dismissal, a copy of the written notice of the final decision of the municipality setting forth the specific acts or omissions that are the basis of the dismissal; and The office to which the employee is currently assigned. NC Stat. §160A-168
	Water and sewer authority employees Water and sewer authority employees/former employees or their duly authorized agents may examine all portions of the employee's personnel file, with some exceptions (listed in the Inaccessible Records section below). A licensed physician designated in writing by the employee may examine the employee's medical record. The following information with respect to each water and sewer employee and former employee is a matter of public record: Name; Age; Date of original employment or appointment to the service; The terms of any contract by which the employee is employed whether written or oral, past and current, to the extent that the city has the written contract or a record of the oral contract in its possession; Current position; Title; Current salary (includes pay, benefits, incentives, bonuses, and deferred and all other forms of compensation paid by the employing entity); Date and amount of each increase or decrease in salary with that authority; Date and type of each promotion, demotion, transfer, suspension, separation, or other change in position classification with that authority; Date and general description of the reasons for each promotion with that authority; Date and type of each dismissal, suspension, or demotion for disciplinary reasons taken by the authority; if the disciplinary action was a dismissal, a copy of the written notice of the final decision of the authority setting forth the specific acts or omissions that are the basis of the dismissal; and The office to which the employee is currently assigned. NC Stat. §162A-6.1
	School district and community college employees School district and community college employees, applicants for employment, former employees, or their properly authorized agents may examine their personnel files at all reasonable times. NC Stat. §§ 115C-321, 115D-29
	Public hospital employees Public hospital employees or their duly authorized agents may examine all portions of the employee's personnel file, with some exceptions (listed in the Inaccessible Records section below). A licensed physician designated in writing by the employee may examine the employee's medical record. The following information with respect to each public hospital employee is a matter of public record: Name; Age; Date of original employment; Current position title; Date of the most recent promotion, demotion, transfer, suspension, separation, or other change in position classification; and The office to which the employee is currently assigned. In addition, the following information with respect to each licensed medical provider employed by or having privileges to practice in a public hospital shall be a matter of public record: educational history and qualifications, date and jurisdiction or original and current licensure; and information relating to medical board certifications or other qualifications of medical specialists. Also, the following information for the last completed fiscal year of a public hospital with respect to each covered officer and the five key employees (who are not covered officers) with the highest annual compensation of a public hospital is a matter of public record: Base salary; Bonus compensation; Plan based incentive compensation; and Dollar value of all other compensation, which includes any perquisites and other personal benefits. NC Stat. §131E-257.2
Inaccessible Records	State employees State employees are not entitled to view letters of reference solicited prior to employment or information concerning a medical disability, mental or physical, that a prudent physician would not divulge to a patient. An employee's medical record may be disclosed to a licensed physician designated in writing by the employee. NC Stat. §126-24
	County, city, and sewer and water authority employees County, city, and sewer and water authority employees and former employees are not entitled to inspect the following information, even if it is contained in their personnel files: Letters of reference solicited prior to employment, Information concerning a medical disability, mental or physical, that a prudent physician would not divulge to his patient (a licensed physician designated in writing by the employee may examine the employee's medical record); Testing or examination material used solely to determine individual qualifications for appointment, employment, or promotion, when disclosure would compromise the objectivity or the fairness of the testing or examination process; Investigative reports or memoranda and other information concerning the investigation of possible criminal actions of an employee, until the investigation is completed and no criminal action taken, or until the criminal action is concluded; Information that might identify an undercover law enforcement officer or a law enforcement informer; and Notes, preliminary drafts, and internal communications concerning an employee. In the event such materials are used for any official personnel decision, then the employee or his duly authorized agent shall have a right to inspect such materials. NC Stat. §§ 153A-98, 160A-168, 162A-6.1
	School district and community college employees School district and community college employees, former employees, applicants for employment, and their authorized representatives are not entitled to inspect letters of reference solicited prior to employment. NC Stat. §§ 115C-321, 115D 29
	Public hospital employees Public hospital employees are not entitled to review the following information, even if it is contained in their personnel files: Letters of reference solicited prior to employment. Testing or examination material used solely to determine individual qualifications for appointment, employment, or promotion in the public hospital's service, when disclosure would compromise the objectivity or the fairness of the testing or examination process; Investigative reports or memoranda and other information concerning the investigation of possible criminal actions of an employee, until the investigation is completed and no criminal action taken, or until the criminal action is concluded; Information that might identify an undercover law enforcement officer or a law enforcement informer; Notes, preliminary drafts, and internal communications concerning an employee. In the event such materials are used for any official personnel decision, then the employee or his duly authorized agent shall have a right to inspect such materials. NC Stat. §131E-257.2

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Recordkeeping - North Carolina

Summary of differences between federal and state regulations

State

Federal