State and federal laws vary with regard to the requirements for an employer to display informational posters and retain company records. The following charts are designed to acquaint the employer with these requirements and to provide information about posting and recordkeeping functions.
The following charts outline many of the employer’s responsibilities with regard to recordkeeping and posting requirements and define the procedures for employers covered under particular laws. This guide also provides suggestions for employers who merely wish to establish compliance but are not required to do so by law.
This chapter reviews federal policy concerning retaining employment records as enforced under a variety of federal acts. It then reviews any state requirements for handling employment records. Each state’s labor and employment laws have their own recordkeeping requirements, sometimes requiring retention for lengthy periods of time (for example, six years). As always, the laws themselves should be consulted to ensure your company is in compliance.
The following are federal laws that require recordkeeping:
Record |
Description |
Duration |
Payroll Records |
This includes employee’s name, address, date of birth, occupation, rate of pay, and compensation earned per week. |
Three years. |
Personnel Records |
This includes records used in hiring (applications, resumes, responses to job ads, etc.), records pertaining to employment decisions (e.g., termination, demotion, promotion, transfer, layoff, recall, selection for training, etc.), results from employment tests, job advertisements, and training records. |
One year from the date of the personnel action. Note: If enforcement action is brought against employer, records must be kept until final disposition of action. |
Employee Benefits |
Benefit plans, including pension plans, insurance plans, written seniority systems, and written merit systems (if such a plan or system is not in writing, then an employer must keep a summary). |
One year after termination of the plan or system. |
Record |
Description |
Duration |
Personnel Records |
This includes general personnel records including application forms, promotion, transfers, discharges, tests, training, rates of pay, requests for reasonable accommodations. |
One year from the date of the personnel action or the date personnel action is actually taken, whichever is later. |
Personnel Records |
All personnel records relating to a charge filed with the EEOC, including records related to similarly situated employees. |
Until final disposition of the charge or action. |
Apprenticeship Programs (I) |
This includes a chronological list of the apprentice’s name, addresses, sex or minority status, and date of application race or actual application forms. |
Two years from the date of application. |
Apprenticeship Programs (II) |
Employers required to file EEO-2 must keep all records relating to apprenticeship applications, including test and interview results and requests for reasonable accommodation. |
Two years after date of making the record. |
Apprenticeship Programs (III) |
All records made solely for completion of EEO-2 report. |
One year from due date of report. |
Record |
Description |
Duration |
---|---|---|
Investigation materials |
An explanation provided to the employee being investigated of the specific incident or activity of economic loss that is under investigation. |
Three years from the date the polygraph is conducted, or from the date the polygraph test is requested if no examination is conducted. |
Subject of the investigation |
An explanation of the specific loss or injury involved with the investigation of criminal or other misconduct, involving, or potentially involving, loss or injury to manufacture, distribution, or dispensing of a controlled substance as well as the nature of the employee’s access to particular person or property. |
Three years from the date the polygraph is conducted, or from the date the polygraph test is requested if no examination is conducted. |
A written statement |
A statement setting forth the time and place of the test, and stating that the employee has a right to consult with counsel. |
Three years from the date the polygraph is conducted, or from the date the polygraph test is requested if no examination is conducted. |
Written notification |
Written notification of persons to be examined submitted to examiner. |
Three years from the date the polygraph is conducted, or from the date the polygraph test is requested if no examination is conducted. |
Copies |
All opinions, reports, or other records given to the employer by the examiner. |
Three years from the date the polygraph is conducted, or from the date the polygraph test is requested if no examination is conducted. |
Ongoing investigation (I) |
When requested with ongoing investigation involving economic loss or injury, statement setting forth the specific incident or activity under investigation and basis for testing particular employee. |
Three years from the date the polygraph is conducted, or from the date the polygraph test is requested if no examination is conducted. |
Ongoing investigation (II) |
When requested with ongoing investigation involving loss or injury resulting from the manufacture, distribution or dispensing of a controlled substance, record identifying the loss or injury in question and nature of employee’s access to person or property that is the subject of the investigation. |
Three years from the date the polygraph is conducted, or from the date the polygraph test is requested if no examination is conducted. |
Record |
Description |
Duration |
Data |
All data used to support reports, certifications, or descriptions required by ERISA, including vouchers, worksheets, receipts, and applicable resolutions (also required for all persons who would be required to file but for an exemption or simplified recordkeeping requirement). |
Six years after the filing date of the documents to which they relate. |
Benefit determination |
Records pertaining to each employee for determination of benefits that are due or may be due. |
At least six years (or, if longer, statute of limitations under state law). |
Record |
Description |
Duration |
Amount of each wage |
Payment which is separately subject to Social Security and Medicare taxes. |
Four years after the tax due date or the date tax is paid, whichever is later. |
Amount of FICA tax collected |
For each wage payment and the date collected. |
Four years after the tax due date or the date tax is paid, whichever is later. |
Wage payment |
The reason why the total wage payment is more than the taxable amount. |
Four years after the tax due date or the date tax is paid, whichever is later. |
Employees’ receipts |
Copies of employees’ receipts, if you refunded over-withheld FICA tax to them. |
Four years after the tax due date or the date tax is paid, whichever is later. |
Record |
Description |
Duration |
Wages paid to each employee |
Total wages paid to each employee, including withholding. |
Four years after the tax due date or the date tax is paid, whichever is later. |
Amount of pay subject to FUTA |
The amount of pay subject to FUTA, and the reason if this amount is not equal to total compensation. |
Four years after the tax due date or the date tax is paid, whichever is later. |
Amount paid into any state unemployment fund |
The amount paid into any state unemployment fund, including any amounts deducted or to be deducted from employee pay. |
Four years after the tax due date or the date tax is paid, whichever is later. |
Other information |
Any other information required to 4 be shown on the FUTA tax return (FORM 940 or 940-EZ), and the amount of the tax. |
Four years after the tax due date or the date tax is paid, whichever is later. |
Record |
Description |
Duration |
Workweek |
Number of hours each employee works, pay rates, total wages, and total deductions. |
Three years after the last date of entry. |
Workweek |
Time cards and sheets, records explaining any wage differentials between employees of the opposite sex (job descriptions, job evaluations, merit, incentive, and seniority systems, etc.) and wage rate tables. |
Two years from the date the record is made. |
Collective |
Benefit plans, written seniority systems, and written merit plans. |
Three years. |
Note: In addition, the EPA incorporates by reference the recordkeeping requirements of the FLSA.
Record |
Description |
Duration |
---|---|---|
Personnel information |
Employee’s name, address, and zip code, date of birth (if under 19 years of age), sex, occupation. |
Three years after the last date of entry. |
Employee schedule |
Time of day and the day of the week the employee’s workweek begins (if the employee is part of a workforce where all employees’ workweeks begin at the same day/time, then a single notation of the day and the time all employees’ workweeks begin is sufficient). |
Three years after the last date of entry. |
Employee payroll records |
Regular hourly rate of pay for any workweek in which overtime compensation is due, explanation of basis of pay, amount and nature of each payment excluded from the regular rate of pay, straight time earnings or wages due, exclusive of overtime premium, total wages paid for overtime, total wages paid, total additions to and deductions from employee’s pay, date of payment, and pay period covered by the payment. |
Three years after the last date of entry. |
Hours worked |
Employee’s daily and weekly hours worked. |
Three years after the last date of entry. |
Supplementary records |
Time cards. work time schedules, order, shipping, and billing records, wage rate tables, additions and deductions from wages. |
Two years after the record is made. |
Payroll records |
Payroll records, including: full name, identification number, home address, date of birth (if under age 19), gender, occupation, day and time workweek begins, hours worked each day and week, total daily or weekly earnings, overtime compensation, basis of overtime computation, total wages for each pay period, and payment date for certificates, agreements, plans, notice, etc. |
Three years after the record is made. Three years from last effective date for certificates, agreements, plans, notices, etc. |
Record |
Description |
Duration |
---|---|---|
Identification |
A symbol or letter that identifies the employee as a tipped employee. |
Three years after the last date of entry. |
Tipped hours |
The actual number of hours worked each workday in a tipped position. |
Three years after the last date of entry. |
Non-tipped hours |
The total hours worked each workday in a non-tipped position. |
Three years after the last date of entry. |
Separated Daily and Weekly Earnings |
The total daily or weekly straight-time earnings separated by: time paid for hours worked each workday in a tipped position, time paid for hours worked each workday in a non-tipped position, and tips received and accounted for or turned over by the employee to the employer in a weekly or monthly amount. |
Three years after the last date of entry. |
Wages increased by tips |
Amount by which the wages of each tipped employee have been deemed to be increased by tips or determined by the employer (not in excess of 40 percent of the applicable statutory minimum wage). The amount per hour that the employer takes a tip credit shall be reported to the employer in writing each time it is changed from the amount per hour taken in the preceding week. |
Three years after the record is made. |
Record |
Description |
Duration |
---|---|---|
Payroll records |
In addition to the general recordkeeping requirements, an employer’s payroll records must segregate trainees, learners, and apprentices, and indicate their status using a code or symbol. |
Three years after the record is made.
|
Record |
Description |
Duration |
---|---|---|
School information |
When the student is hired, information from the school that he or she receives primarily daytime instruction at the physical location of the school. If he or she changes schools, another certificate from the new school that he or she is accepted as a full time student and receives primary daytime instruction.
|
Three years after the record is made.
|
Student’s work hours |
Monthly records of the student’s work hours, and the total hours worked by all employees during the month. |
Three years after the record is made.
|
Record |
Description |
Duration |
Basic payroll and identifying employee data |
This information includes employees’ names, addresses, and occupations, their rates or bases of pay and terms of compensation, daily and weekly hours worked for each pay period, additions to or deductions from wages, and total compensation paid . | Three years after the record is made. |
Dates FMLA leave is taken by eligible employees | This information can be in the form of time records, employees’ request for leave, etc. The leave time must be designated as FMLA leave in the records, and may not include leave required under state law or employer plans that are not also covered by the FMLA. If leave is taken in increments of less than one full day, the employer must record the hours of leave . | Three years after the record is made. |
Copies of employee notices of leave furnished to the employee under the FMLA, if in writing | Copies of general and specific written notices given to employees as required by the FMLA are to be kept, as well. | Three years after the record is made. |
Any documents related to the taking of paid and unpaid leaves | This includes written and electronic records. Also, records of premium payments of employee benefits must be maintained. | Three years after the last date the record is made. |
Records of any dispute regarding the designation of leave as FMLA leave |
This includes any written statements from the employer or employee relating to the reasons for the designation and/or the dispute. | Three years after the last date the record is made. |
NOTE: The FMLA also mandates that records, which relate to medical certifications and medical histories must be maintained in separate files and treated as confidential records.
Record |
Description |
Duration |
Employee identification forms (I-9 Form) |
Used when an employee is hired to verify the applicant’s employment eligibility. |
Three years from the date of hire or one year after termination, whichever is later. |
Record |
Description |
Duration |
---|---|---|
Form 300 – log of work related injuries
|
Work-related injuries which result in the loss of a workday, require medical treatment beyond first aid, involve a loss of consciousness, restriction of motion, or transfer to another job, must be recorded in OSHA Form 200. |
Five years from the end of the calendar year to which the record relates (form must be updated during this period). After January 1, 2002, Form 300 must be kept for five years following the year to which the form relates. |
Form 301 – Injuries and illnesses report
|
Used to record details about a workplace injury or illness, including the employer’s address, a description of the incident, description and cause of injury or illness, and the name of the treating doctor or hospital. |
Five years from the end of the calendar year to which the record relates. After January 1, 2002, Form 301 must be kept for five years following the year to which the form relates. |
Form 300A – summary of work-related injuries and illnesses |
Used to simplify calculation of incidence rates. |
Five years from end of the calendar year to which the record relates. |
Employee exposure records |
Exposure records and medical records for all employees working in areas that may expose them to toxic substances or harmful physical agents. |
Generally, 30 years, except biological monitoring results described as exposure records by a specific standard must be maintained as per the standard. |
Material Safety |
Contain detailed information about hazardous chemicals. |
Must be maintained and made accessible to employees in their work area during each shift; must be kept for 30 years (deemed an exposure record). |
Employee medical |
Records concerning the health status of an employee which is made or maintained by a physician, nurse, or other healthcare professional or technician. |
Duration of employment plus 30 years. |
Records |
Medical removal records. |
At least to the duration of the person’s employment. |
NOTE: Employers in many industries are exempt from OSHA’s basic injury and illness recordkeeping requirements. However, they still may be required to maintain records pursuant to specific applicable OSHA standards (for example, asbestos). Moreover, all employers must report fatalities in the workplace or the hospitalization of three or more employees resulting from a workplace incident.
Record |
Description |
Duration |
---|---|---|
Personnel records |
This includes general personnel records including application forms, promotions, demotions, transfers, discharges, tests, training, rates of pay, etc. |
One year from the date of the personnel action or the date of making the record, whichever is longer. |
Personnel records |
All personnel records relating to a charge filed with the EEOC or ACRD, including records related to similarly situated employees. |
Until disposition of the charge or action. |
Personnel records |
Employee requests for reasonable accommodation. |
One year from the date of the personnel action.
|
Apprenticeship |
This includes a chronological list of the names, addresses, sex, race of all applicants, and date of application. |
Two years from the date of application, or the length of apprenticeship, whichever is longer. |
Apprenticeship |
All records made solely for completion of EEO-2 report. |
One year from due date of report. |
EEO-1 (Employer Information Report) |
Report shows numbers of minority and female employees compared to employer’s total workforce in different job categories. |
A copy of the most recent report filed must be retained. |
NOTE: Employers with 100 or more employees must file an EEO-1 report by September 30th of each year.
Record |
Description |
Duration |
Complaints |
Records regarding complaints about discrimination against disabled veterans. |
One year. |
Personnel records | Job descriptions; job postings and advertisements; records of job offers, applications, and resumes; interview notes; tests and test results; written employment policies and procedures; and personnel files. | Two years from the date of the making of the record or the personnel action, whichever is later (one year for contractors with fewer than 150 employees or a contract of less than $150,000). |
As of March 24, 2014, contractors must document and update annually several quantitative comparisons for the number of veterans who apply for jobs and the number of veterans they hire, as well as document and assess external outreach and recruitment efforts and create annual hiring benchmarks. This data must be maintained for three years to be used to spot trends.
Record |
Description |
Duration |
Records |
Records regarding applicants and employees with disabilities, including requests for reasonable accommodation, the results of any physical examination, job advertisements and postings, applications and resumes, interview notes, tests and test results, and other records regarding hiring, assignment, promotion, demotion, transfer, layoff, or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship. |
Two years from the date of record creation or date of personnel action; one year for contractors with fewer than 150 employees or government contracts of less than $150,000. |
Record |
Description |
Duration |
Records |
Required to develop written affirmative action program(s); current written program and supporting documentation of “good faith” efforts including analyses of minority group representation and utilization, hiring/employment practices for the past year, including recruitment sources, upgrading, transfer and promoting practices, and other records relating to compliance with applicable EEO nondiscrimination and affirmative action requirements. |
Two years from the date the record was created or the action occurred, whichever is later; one year for contractors with fewer than 150 employees or government contracts of less than $150,000. |
A contractor and each subcontractor performing work subject to the E.O. must make and maintain during the course of the covered contract as well as after the end of the contract the following information for each employee:
Record |
Description | Duration |
Records |
|
During the course of the covered contract and three years after the end of the contract. |
There are certainly many benefits to maintaining employment records electronically, and many employers are moving in that direction. Because many employment statutes were enacted before electronic storage became an option, many of those statutes do not address whether such documents may be maintained in electronic format only. However, regulations issued under the Age Discrimination in Employment Act and the Fair Labor Standards Act do suggest that electronic storage may be permissible, in that they specifically provide that no particular form for retaining records is required. Moreover, the recent revisions to the Family and Medical Leave Act regulations specifically permit electronic storage of required records so long as the electronic version is clear and can be made available for transcription or copying. Additionally, under a relatively recent amendment to the Immigration and Nationality Act, employers are specifically permitted to retain I-9 records in electronic form. IRS regulations specifically permit employers to establish a system for receiving completed W-4s electronically so long as the system ensures the completeness and accuracy of the information provided.
Although there is no specific pronouncement regarding electronic storage of records under many employment statutes, federal (and generally state) employment regulations are generally interpreted and applied in a consistent manner and would likely be interpreted to permit electronic storage of records. It will be necessary to institute safeguards to limit access to the records (as one would with paper records). This may include a system for tracking access to the records. Additionally, it will be necessary to devise a system to keep confidential medical information separate from employee personnel files. It will also be important to make sure that the records are stored such that the employer can comply with any agency requests to inspect records. In other words, the employer must be able to make the records available for inspection within the applicable timeframe, the records should be stored to enable such inspections, and the records should be stored to enable copying of the documents.
One concern with maintaining records electronically is their admissibility during litigation. This concern is greatest with documents with original signatures (which are generally required for admissibility purposes). For this reason, there may be some utility in retaining, for example, employment agreements, severance agreements, and non-disclosure agreements with original signatures.
In the event an employer moves forward with electronic storage, it will be necessary to develop a detailed policy regarding storage, back-up, and deletion of records so everyone involved will have clear guidance on the requirements.