News | September 5, 2000

Record Retention Requirements Under Federal Law: Not Much Has Changed in the New Millennium

Source: Employment Practices Solutions, L.L.C.

June 22, 2000 - By DeDe Wilburn Church, Esq., Senior Consultant, Employment Practices Solutions, Houston, Texas

If one were to believe the predictions of the 1980s, we each now should be working in revolutionary "paperless offices," saving resources, storage space, and headaches for Human Resource types. Indeed, for a generation, the prediction of the demise of paper as a record-keeping medium was an assumption that went virtually unchallenged. But, the view from behind the mile-high stacks of papers on my desk reveals that the future has refused to conform to our expectations, once again.

In an age where change is so rapid that the capacity for storing information on microchips routinely doubles every 18 months, paper, whose essential character has remained unchanged for millions of years, not only continues to exist but continues to thrive as well.

Both the federal and state governments still expect employers to generate, maintain, and produce upon request countless information on their employees. The overwhelming majority of this information is captured on paper. This despite the federal government's movement toward less paperwork via the Government Paperwork Elimination Act ("GPEA") which takes effect in October of 2003. The GPEA requires that all federal forms be made available for electronic submission. The Act thus mandates that agencies dealing with the federal government obtain and utilize software allowing for electronic signatures.
While we can still expect the methodology of record retention to change drastically, the core information required by law to be retained is not likely to change. The following is a synopsis of the critical employment-based laws and their record retention requirements.

TITLE VII (1964 CIVIL RIGHTS ACT, AS AMENDED IN 1991)

Records To Be Retained:

  1. Any personnel or employment records made or kept by the employer, including application forms and records pertaining to hiring, promotion, demotion, transfer, layoff or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship
  2. Personnel records relevant to a charge of discrimination or action brought by the Attorney General against the employer, including, for example, records relating to the charging party and to all other employees holding similar positions, application forms, or test papers completed by unsuccessful applicants and by all other candidates for the same position
  3. For apprenticeship programs: (1) chronological list of names and addresses of all applicants, dates of application, sex, and minority group identification, or file of written applications containing the same information; and other records pertaining to apprentice-ship applicants (for example, test papers, interview records); (2) any other record made solely for completing EEO-2 or similar reports.
  4. For employers with 100 or more employees: Copy of EEO-1, Employer Information Report.

Retention Period:

  1. One year from the date the record was made or personnel action was taken, whichever is later.

  2. Until final disposition of the charge or action.

  3. (1) Two years from the date the application received, or the period of successful applicant's apprenticeship, whichever is longer; (2) one year from the date of report.

Form of Retention: No particular form is specified. Information on racial or ethnic identity may be obtained either by visual surveys of the workforce or from post-hire records, where permitted by state law. Such post-employment records should be kept separate from employees' basic personnel records or other records available to those responsible for personnel decisions.

Information on temporary or seasonal positions must be reported on Standard Form 100 (EEO-1) on September 30 of each fiscal year, in the same fashion as information about permanent employees is reported.

A copy of the most recent report filed for each reporting unit must always be retained at each such unit or at company or divisional headquarters.

References: 42 U.S.C. 2000e and 29 CFR 1602

Age Discrimination in Employment Act

Records to be Retained:

  1. Payroll or other records containing each employee's name, address, date of birth, occupation, rate of pay, and compensation earned per week
  2. Personnel or employment records relating to: (1) job applications, resumes, or other replies to job advertisements, including applications for temporary positions and records pertaining to failure or refusal to hire; (2) promotion, demotion, transfer, selection for training, layoff, recall, or discharge; (3) job orders submitted to employment agencies or unions; (4) test papers in connection with employer-administered aptitude or other employment tests; (5) physical examination results considered in connection with personnel actions; (6) job advertisements or notices to the public or employees regarding openings, promotions, training programs, or opportunities for overtime work.
  3. Employee benefit plans, written seniority or merit rating systems
  4. Personnel records, including the above, relevant to any enforcement action brought against employer

Retention Period

  1. Three years
  2. One year from date of personnel action to which record relates
  3. Full period that plan or system is in effect, plus one year after its termination
  4. Until final disposition of the action

Form of Retention

  1. No particular form is specified.
  2. No particular form is specified.
  3. If plan or system is not in writing, a summary memorandum is to be kept.
  4. No particular form is specified.

Reference: 29 U.S.C. 621; 29 CFR 1627

Americans with Disabilities Act

Records to be Retained: Record-keeping provisions are the same as for Title VII, sections a) and b) listed above. No reports are required.

Retention Period: One year

Form of Retention: No particular form is specified.

Reference: 42 U.S.C. 12101; 29 CFR 1602

Fair Labor Standards Act

Records to be Retained

  1. Basic records containing employee information, payroll records, individual contracts or collective bargaining agreements, applicable certificates and notices of wage-hour administrator, sales and purchase records.
  2. Supplementary basic records, including basic employment and earnings records; wage rate tables; work-time schedules; records of additions to or deductions from wages paid; and documentation of basis for payment of any wage differential to employees of the opposite sex in the same establishment.
  3. Certificates of age.
  4. Written training agreements.

Retention Period

  1. Three years
  2. Two years
  3. Until termination of employment
  4. Durations of training program

Form of Retention
a) – d) No particular form is specified.

Reference: 20 U.S.C. 201.

Family and Medical Leave Act

Records to be Retained:

  1. Basic payroll and identifying employee data, including name, address, occupation, rate or basis of pay and terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; total compensation paid.
  2. Dates FMLA leave taken by employees.
  3. Hours of leave, if FMLA leave taken in increments of less than one full day.
  4. Copies of employee notices of leave given employer under FMLA in if writing; copies of all general and specific notices given to employees.
  5. Any documents describing employee benefits or employer policies and practices related to taking of paid and unpaid leave.
  6. Premium payments of employee benefits.
  7. Records of any dispute between employer and employee about designation of leave as FMLA leave.

Retention Period

a)-g) Three years

Form of Retention
Employers are to make, keep, and preserve records in accordance with section 11(c) of Fair Labor Standards Act. No particular form is specified.

Reference: 5 CFR 630, Subpart L

Occupational Safety and Health

Records to be Retained:

  1. Log and summary of occupational injuries and illnesses, briefly describing recordable cases of injury and illness, extent and outcome of each incident, and summary totals for calendar year.
  2. Supplemental Record containing more detailed information for each occurrence of injury or illness.
  3. Complete and accurate records of all medical examinations required by law.
  4. Exposure and medical records of any employee exposed to potentially toxic substances and harmful physical agents required to be monitored or measured.

Retention Period:

  1. Five years following end of year to which records relate.
  2. Five years following end of year to which records relate.
  3. Duration of employment, plus 30 years, unless a specific OSHA standard provides for different time period.
  4. Thirty years, except that first-aid records, experimental toxicological research records, and medical records of short-term employees are exempt

Form of Retention:

  1. OSHA Form 200
  2. OSHA Form 101
  3. No particular form is specified.
  4. No particular form is specified.

Reference: 29 USC 651

Federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996
New Hire Reporting: Effective October 1, 1998, all Texas Employers are required to report certain information on all newly hired and rehired employees to the Texas Employer New Hire Reporting Operations Center. This new Texas mandatory system replaces the previous voluntary reporting system under the federal act. Texas employers MUST report, within 20 days of the employee's first day of work, the following six items:

Federal EIN
Employer name
Employer address
Employee SSN
Employee name
Employee address

In addition, employers may optionally report the employee's date of birth, salary, date of hire, and state of hire. The information will be shared with several different agencies to provide a state and federal database of names that will be used to track down parents owing child support, and to prevent and detect fraud in public assistance, unemployment benefits and worker's compensation programs. More information about reporting can be found at www.TexasNewHire.state.tx.us or by calling 1-888-TEX-HIRE.

Dedra L. Wilburn is a Consultant with Employment Practices Solutions. She was recently with the Office of the Attorney General for the State of Texas for six years, where she developed a thorough working knowledge in employment law and training. DeDe received her Doctorate of Jurisprudence with Honors from University of North Carolina School of Law in Chapel Hill, North Carolina. DeDe works with EPS in the Houston office. dlw@epexperts.com