Federal & State Regulations | Recordkeeping - West Virginia

State Info

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 All employers must maintain certain wage and hour records for at least five years. The records, with respect to each employee, must contain: Full name and any identifying symbol or number if such is used in place of name on any time, work, or payroll record; Social Security number; Home address; Date of birth, if younger than 18; Occupation or job classification; Rate of regular pay and rate of overtime pay; Hours worked each workday and total hours worked each workweek; and Method of calculating the percent of fringe benefits owed to an employee at any given time. WV Code §21-5-9, 42 C.S.R. §42-5-4
	Retroactive wage payments In the case of retroactive wage payments, employers must record and preserve, as an entry on the employee's payroll or other pay records: The amount of such payment to each employee, The period covered by such payment to each employee, and The date of the payment. 42 C.S.R. §42-5-5
	Payroll The following requirement applies only to employers with at least six employees, unless 80 percent of the employees are subject to any federal act relating to minimum wage, maximum hours, and overtime compensation. These covered employers must keep records of the following information relating to each employee for at least two years: Full name and identifying symbol or number, if such is used in place of a name on any time, work, or payroll record; Address; Date of birth, if younger than 18; Occupation or job classification; Sex; Rate of pay; Hours worked each workday and total hours worked each workweek; Time of day and day of week on which the employee's workweek begins. Regular hourly rate of pay for any week overtime is worked and the overtime excess compensation; Total weekly straight-time earnings/wages and total overtime excess compensation which amounts over all straight-time earnings or wages, thereby showing the total wages paid each pay period; Total deductions, itemized, from wages paid each pay period, and Amount paid to the employee for each pay period Additionally, these employers must keep: All records directly relating to wages and hours of persons employed; Wage rate tables and schedules which provide piece rates or other rates used in computing straight-time earnings, salary, or wages, or overtime excess computation; Work time schedules or tables which establish the hours and days of employment of individual employees or of separate work forces; and Records of additions or deductions from wages paid (these must include the date, amount, and nature of the items which make up the total additions and deductions). These records must also be kept for at least two years. WV Code §21-5C-5; 42 C.S.R. §§ 42-8-4 42, 42-8-5
	Public contractors' records Contractors and subcontractors, or the officer of the public authority in charge of the construction of a public works project, must keep records showing the names and occupations of all skilled laborers, workmen, and mechanics employed in connection with the project; and the actual wages paid to each of these workers. These records should be kept for three years after the termination of the contract. WV Code §21-5A-8
	For-hire motor carriers' records For-hire motor carrier companies must keep time records, for six months, indicating: The time all for-hire drivers report for duty, The time of relief from duty, Hours driven, Hours on duty, and Hours off duty. This applies only to for-hire carriers operated by an on-board driver, which are designed to transport passengers exclusively on any public highway or road in this state, and engaged only in intrastate commerce. WV Code §24A-2-6(d)
	Unemployment For unemployment compensation purposes, employers must keep records showing: The period covered by each payroll, The place of employment within the state, and The scheduled hours per day or week. Additionally, for each individual worker and each payroll period, employers must keep records containing: The worker's Social Security number, Name, Wages (and other remuneration), Wage rate, Travel expenses, and dates covered, Time lost due to reasons other than lack of work, Exact dates of employment, and Cause of any separation. These employment records should be retained for four years. WV Code §21A-10-4,
Accessible Records	West Virginia has no regulation concerning employee access to personnel records.