Federal & State Regulations | Recordkeeping - Wisconsin

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	Payroll Keep payroll and other records that contain the following information with respect to each employee: Name and address, Date of birth, Date of entering and leaving employment, Time of the beginning and ending of work each day, Time of the beginning and ending of meal periods (when the employee’s meal periods are required or when the meal periods are deducted from work time. This requirement needn't be met when work is of such a nature that production or business activity ceases on a regularly scheduled basis), Total number of hours worked per day and per week, Rate of pay and wages paid each payroll period, The amount of and reason for each deduction from the wages earned, and Output of employee, if paid on other than time basis. These records must be kept for at least three years. Effective April 18, 2014, employers no longer need to record the hours worked by exempt employees if they are not paid on an hourly basis. WI Stat. §104.09; WI Admin. Code DWD §§ 270.09, 272.11
	Public contractors' records Contractors and subcontractors performing work on a public works project must keep records of the name and trade/occupation of every person working on the project. Records must also be kept of the number of hours worked by each of those laborers and the actual wages paid for the hours worked. WI Stat. §103.49(5)(a)
	Unemployment Employers must maintain certain work records to comply with unemployment insurance law. These records must include the following information with respect to each employee: Full name, address, and Social Security number; Dates on which services were performed; Weekly wages earned; and Dates on which the wages were paid. The records and any other records which may show payments for personal services must be preserved for six years from the date on which each individual last performed services for the employer. WI Stat. §108.21, WI Admin. Code DWD §110.02
Accessible Records	Public and private employees Public and private employees and former employees may view their personnel records if their employer keeps such records. The employer may require employees to make their request to view such records in writing. An employee who is involved in a current grievance against the employer may designate in writing a representative of the employee’s union, collective bargaining unit, or other designated representative to inspect the employee’s personnel records which may have a bearing on the resolution of the grievance. The accessible personnel records includes any documents which are used or which have been used in determining that employee's qualifications for employment, promotion, transfer, additional compensation, termination, or other disciplinary action. Employees and their representatives may also view their medical records, unless the employer believes disclosing the medical records would have a detrimental effect on the employee. In that case, the employer may release the records to the employee's chosen physician. Frequency and location of file inspection Employers must grant at least two of an employee's requests to view his or her personnel records in a calendar year, unless otherwise provided in a collective bargaining agreement. Access to the records must be provided within seven working days after an employee makes a request. Inspection of personnel records is to take place in a location near the workplace facility during work hours. However, if this would require an employee to take time off from work, the employer may set up a meeting time outside of normal work hours and at the location where the records are kept. Copies The employee or the employee's representative have the right to copy or receive copy of the records. The employer may charge a reasonable fee for providing copies, but the fee may not exceed the actual cost of reproduction. Employee statement of disagreement If the employee disagrees with any information contained in the personnel records, a removal or correction of that information may be mutually agreed upon by the employer and the employee. If an agreement cannot be reached, the employee may submit a written statement explaining the employee’s position. This statement should be attached to the disputed portion of the personnel record. The employee’s statement shall be included whenever that disputed portion of the personnel record is released to a third party, as long as the disputed record is a part of the file. WI Stat. §103.13
Inaccessible Records	The right of the employee or employee's designated representative to inspect personnel records does not apply to: Records relating to the investigation of possible criminal offenses committed by that employee; Letters of reference for that employee; Any portion of a test document, except that the employee may see a cumulative total test score for either a section of the test document or for the entire test document; Materials used by the employer for staff management planning, including judgments or recommendations concerning future salary increases and other wage treatments, management bonus plans, promotions and job assignments or other comments or ratings used for the employer’s planning purposes; Information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of the other person’s privacy; and Records relevant to any other pending claim between the employer and the employee which may be discovered in a judicial proceeding. WI Stat. §103.13(6)