['Recordkeeping']
['Recordkeeping']
06/12/2024
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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 Under the provisions of North Dakota's Equal Pay for Men and Women law, employers must maintain records of:
There is no specific time requirement to keep the records, but the statute of limitations to bring legal action under the law is two years. ND Code §34-06.1-07 |
Payroll Employers must keep a register of the names of all employees, except individuals engaged in firefighting or sworn law enforcement officers for a political subdivision of the state. ND Code §34-06-01, §34-06-07 | |
Tipped employees For tipped employees, employers who elect to use tip credits in figuring wages must inform employees in advance and maintain written records showing that the employee receives at least the minimum wage when direct wages and the tip credit allowance are combined. Tip pooling is allowed only among tipped employees. A vote of tipped employees to allow tip pooling must be taken, and 50 percent plus one of all tipped employees must approve it. The employer must maintain a written record of each vote on tip pooling, including names of employees voting and the vote totals. ND Admin. Code §46-02-07-03 | |
Private business records Under North Dakota's Uniform Preservation of Private Business Records Act, records private businesses are required by state law to keep or preserve may be destroyed after three years from the making of the record, unless another law requires them to be kept for a different period of time. These records include any book of account, voucher, document, canceled check, payroll, correspondence, record of sales, personnel, equipment production, report relating to any of these items, and any other business paper. ND Code §31-08.1-01, §31-08.1-02 | |
Unemployment North Dakota unemployment compensation law requires employers to keep certain records for five years from the due date of the contributions for the period to which they relate. The records must contain, with respect to each worker:
Additionally, employers must keep the following general information:
ND Code §52-01-02, ND Admin. Codes §27-02-02-01 Employer's Handbook for the Unemployment Insurance Program in North Dakota: Reporting and Records | |
Accessible Records | State employees In North Dakota, only state employees are entitled to inspect their personnel files. The employee or his or her designated representative must be permitted to examine the personnel file by appointment during normal business hours. The employee is allowed to copy the file, but must pay for the copies. Documents may not be placed in personnel file that pertain to employee’s performance or personal character unless first reviewed and signed by the employee. Except when the employing agency inserts only salary, insurance, medical, tax, workforce safety, pretax benefits, or deferred compensation information or employment forms, a record of access must be maintained by the employing agency and must be provided to the employee when the employee examines the file. ND Code §54-06-21 |
Inaccessible Records | Any record of a public employee's medical treatment or use of an employee assistance program is not to become part of that employee's personnel record. ND Code §44-04-18.1 |
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)
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