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The information provided here highlights some of the more important recordkeeping requirements that apply to most employers, regardless of industry.
Employers should keep in mind that the requirements for retaining records set forth in the various statutes are minimums. Since these records are critical to the employer if its compliance with federal or state law is questioned or if it must defend itself against employment-related litigation, employers may wish to retain employment-related records for much longer periods of time. Complete and accurate records are often an employer's best defense to employment-related litigation and wage and hour complaints.
In addition, some states have specific laws related to the maintenance of personnel files and other documents that may require longer retention periods.
Please see the state Records section.
Depending on the legal authority and the type of record, statutory retention requirements can vary from 1 year to 30 years after termination of employment. Keeping up with these individual requirements and establishing a workable "tickler" system to identify when and which records may be safely destroyed can be cumbersome, even for small workplaces.
Therefore, if the availability of secure file storage space is not at issue, adherence to the following general safe harbor retention periods may be preferable to researching applicable state or federal law and calculating the unique retention period required for each individual law, record type, and employee in question.
• Personnel records: 7 years after termination of employment.
• Medical and benefits records: 6 years as long as no toxic exposure occurred.
• Employment verification (I-9) records: 3 years after termination.
• Hiring and application records: 2 years after related personnel decision.
• Any other miscellaneous documents and records relating to a charge, complaint, enforcement action, or other compliance review: until the final disposition of the related action.
As noted above, the recordkeeping requirements provided in this section are minimums based on specific requirements set forth by federal laws. However, many employers may wish to keep records even longer, especially since the 2009 passage of the Lilly Ledbetter Fair Pay Act (Ledbetter Act). Though the Ledbetter Act does not contain specific recordkeeping requirements, it has changed the landscape of employee recordkeeping since its passage.
The Ledbetter Act provides that when an employee is affected by a discriminatory pay decision or practice, then each paycheck that is issued based on that pay decision or practice constitutes an individual discriminatory act in itself. The practical effect of this law is that each time an employee is paid (where that pay has been affected by unlawful discrimination), then the employee's time limit to file a claim for pay discrimination resets.
The recordkeeping issue arises if the original decision upon which the employee's pay was based occurred many years in the past. For example, in the case upon which the Lilly Ledbetter Act was based, the discriminatory pay decision had occurred more than 20 years in the past. However, Lilly Ledbetter argued—and the Ledbetter Act now holds—that every subsequent paycheck she received was a new act of discrimination stemming from that decision made 20 years in the past.
The Act creates a difficult recordkeeping burden for employers, as an employer now in a position to defend against such a charge of discrimination would be required to prove that no discrimination occurred—a process that could require unearthing records related to a payroll decision made well outside federal or state statutory record retention requirements, as well as records related to similarly situated employees who may have long since left the company.
As a result, employers concerned about defending charges of pay discrimination may opt to preserve personnel records—particularly those related to pay decisions such as promotions or evaluations—for a longer period than the statutory requirements. If you are concerned that your compensation plan may be discriminatory or that current pay decisions may retain ties to past discriminatory practices, consultation with legal counsel is recommended both to address and remedy the compensation plan and to establish best practices for managing records related to the compensation practice.
Because standards of technology change so rapidly, the laws that address electronic recordkeeping do not impose many specific requirements. It would be of little help for documents to be required to be stored in a specific document format or at a set resolution, since those standards may be outdated just a few years from now.
What we do have are some general, commonsense guidelines for electronic document retention.
Reliable and accurate records. Your process must produce documents that are accurate, authentic, reliable, and that have their integrity preserved. What does this mean in practice? Electronic documents need to represent an exact replica of the paper version. If the document is a scan, it should include all of the text on the document—both sides, with no margins or other identifiers cut off. The scan should be of a resolution and quality that is high enough to be easily read. If the document has color components, such as a signature in blue ink, the scan should also be a color scan.
Unalterable documents. Additionally, when a document is being preserved, it must be in an unalterable format. As with general recordkeeping standards, there is no specific file format that is required; however, easily edited formats such as Word and Excel® are not sufficient. These programs are certainly useful for document creation, but once a file needs to be committed to long-term storage, it needs to be exported to a PDF, image, or similar format that demonstrates that no further changes were made to the file after the date of export.
Readily retrievable documents. Your documents also need to be readily retrievable for inspection—after all, it wouldn’t do much good to convert documents to electronic format if they are then disorganized and difficult to retrieve or, in a worst-case scenario, subject to file corruption, deletion, or other loss.
Able to generate paper version. Finally, just as you need the paper version to be exactly replicated into digital copy, you also need to be able to regenerate a high-quality paper copy from the digital format.
For specific regulatory guidance, see, for example, 29 CFR 2520.107-1, pertaining to the use of electronic media for maintenance and retention of Employee Retirement Income Security Act (ERISA) records.
The following list provides more specific details on the individual requirements of key federal recordkeeping laws. As noted, these requirements are minimums—employers may certainly maintain records for longer, more conservative periods, particularly in light of the Ledbetter Act.
Covered Employers: Employers with 20 or more employees.
Required: Payroll or other records for all full-time, part-time, and temporary employees that include each employee's name, address, date of birth, occupation, rates of pay, and weekly compensation.
To be retained: Three years.
Required: In addition, employers must retain records related to job applications, resumes, and other forms of job inquiries; promotions, demotions, and transfers; selection for overtime, training, layoff, recall, or discharge; job orders submitted to employment agencies; candidate test papers for any position; physical exam results if used in employment decisions; job ads or internal notices relating to job openings; employee benefit plans; and copies of any written seniority and merit systems.
To be retained: One year from the date of action or after termination of the benefit plan or seniority system.
After action started: If a charge of age discrimination or a lawsuit has been filed against the employer under the ADEA, all relevant records must be kept until final disposition of the matter.
(29 USC 626(a), 29 CFR 1627.3)
Covered Employers: Employers with 20 or more employees.
Required: Payroll or other records for all full-time, part-time and temporary employees that include each employee's name, address, date of birth, occupation, rates of pay, and weekly compensation.
To be retained: Three years.
Recommended, not required: Settlement or severance agreements that include signed waivers of employee ADEA rights to sue for age discrimination along with all related documents.
To be retained: At least 1 year from the date employment is terminated.
(29 USC 626(a), 626(f))
Covered Employers: Employers with 15 or more employees.
Required: Job résumés, application forms, notes on interviews, and notes on reference checks; records of promotion, demotion, transfer, layoff, termination, rate of pay or other compensation; selection for training or apprenticeship, including application forms and test papers; applications for disability benefits; and requests for reasonable job accommodation.
Note that information from medical exams is confidential, must be maintained separately, and access must be limited to the employee's supervisors and managers; safety workers; and workers' compensation or other insurance carrier.
To be retained: One year from making the record or taking the personnel action.
After action started: If a charge of disability discrimination or a lawsuit has been filed against the employer under the ADA or GINA, all relevant records must be kept until final disposition of the matter.
(29 CFR 1602.14)
Covered Employers: Employers with 15 or more employees.
Required: Job résumés; application forms; interview notes; notes on reference checks; tests and test results; job advertisements and postings; all records related to hiring, promotion, demotion, transfer, layoff, and termination; payroll records including rate of pay and other compensation; requests for accommodation; and records related to selection for training or apprenticeship.
To be retained: One year from making the record or taking the personnel action.
Note: Apprenticeship records must be kept for the longest of the following: 2 years from the date an application for an apprenticeship is received, 1 year from the date of the EEO-2 report, or until the end of the apprenticeship.
Covered Employers: Employers with 100 or more employees and federal contractors with 50 or more employees.
Required: Form EEO-1 for each location, unit and/or the company headquarters. The completed EEO-1 forms must be filed annually with the Equal Employment Opportunity Commission.
To be retained: A copy of the current EEO-1 Report must be retained by the employer.
Covered Employers: Employers with more than 150 employees and more than $150,000 in government contracts.
Required: Affirmative Action plans and all supporting evidence of good faith efforts to comply with affirmative action laws.
To be retained: Two years.
After action started: If a charge of discrimination or a lawsuit has been filed against the employer under Title VII, all relevant records must be kept until final disposition of the matter.
(29 CFR 1602.7–1602.14, 29 CFR 1602.20–1602.21, 41 CFR 60-1.7)
Covered Employers: All employers with 20 or more employees who offer employees group health insurance benefits.
Required: COBRA does not have specific recordkeeping requirements. However, if an employer's compliance with COBRA is questioned, the burden of proof is on the employer and, absent appropriate records, the employer will not be able to show that it complied with the law.
Therefore, as a best practice, employers should keep lists of employees covered by a group health plan along with their addresses; records related to any qualifying event (i.e., terminations, hour reductions, leaves of absence, deaths of employees, divorce, Medicare eligibility, or disability status); records related to retirees covered by the group health plan; records of COBRA premium payments; records of changes made to the group health plan; records of employees denied coverage and the reasons for each denial; copies of notices both general and specific informing employees of their rights under COBRA; evidence that required notices were sent and received by employees and/or covered beneficiaries (i.e., copies of return receipt cards); and completed election forms.
To be retained: Even though employees are only eligible for COBRA for the 18-month period following a qualifying event, employers should retain records for at least 3 years in the event a claim is filed by an employee claiming the employer did not notify him or her of rights to continue coverage or terminated coverage before the 18-month period had expired.
Covered Employers: Employers that are federal contractors or subcontractors.
Required: Payroll records containing name; address; Social Security number; gender; date of birth; occupation; job classification; rate of hourly, daily, and weekly pay; rates of contributions or costs anticipated for fringe benefits or cash equivalents; hours worked; deductions; and actual pay for each employee.
Note: Contractors employing apprentices or trainees under approved programs must maintain written evidence of the registration of the apprenticeship programs and certification of trainee programs, the registration of apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.
To be retained: Three years from completion of the contract.
(29 CFR 5.5(a)(3))
Covered Employers: All employers.
Required: For each employee required to submit to a polygraph test, a copy of the statement provided to the employee informing him or her of the specific incident under investigation and the basis for the testing; any records identifying the employer's loss that is being investigated; records identifying the nature of the employee's access to the person/property being investigated; a copy of any notice given the examiner identifying the person(s) to be examined; a copy of any reports, questions, lists, and other records given the employer by the examiner.
When an employer is permitted to request that a prospective employee take a polygraph examination, it must retain a copy of the written statement setting forth the time and place of the exam and of the individual's right to consult with an attorney.
To be retained: Three years from the date the polygraph test us administered or, if the employee did not take the test, from the date it was scheduled. Records should be kept in a confidential location at the employee's place of employment. Disclosure of test results should be limited to the examinee, employer, court, or government agency subject to an order of the court.
(29 CFR 801.30, 29 CFR 801.35)
Covered Employers: All employers who maintain employee benefit plans that are subject to ERISA.
Required: Annual reports; summary plan descriptions (SPD); records supporting data in SPDs; notices of plan changes, amendments, or termination; and related welfare and pension reports.
To be retained: Six years.
Note: Records needed to determine a participant's eligibility for benefits must be retained as long as relevant.
(29 USC 1027; 29 CFR 2520.101–1)
Covered Employers: All employers.
Required: Records explaining any wage differentials for employees of different genders. This may include records related to the payment of wages, wage rates, job evaluations, job descriptions, merit systems, seniority systems, collective bargaining agreements, or descriptions of practices or other matters that describe or explain the basis for payment of any wage differential to employees of the opposite sex in the same establishment and that may be pertinent to a determination whether said differential is based on a factor other than sex.
To be retained: Two years, at minimum.
(29 CFR 1620.32)
Covered Employers: All employers that are federal contractors or subcontractors.
Required: Personnel and employment records relating to hiring, assignment, promotions, demotions, transfers, termination, pay rates, wage increases, and other compensation terms; selection for training or apprenticeship; reasonable accommodation requests; physical exam requests; job advertisements and postings; applications, résumés, tests and test results; and interview notes.
Certain contractors are also required to develop written affirmative action plans. Please see the Affirmative Action section.
To be retained: Covered employers with 150 or more employees must maintain personnel and employment records for 2 years. Covered employers with fewer than 150 employees or government contracts that are less than $150,000 must maintain personnel and employment records for 1 year. Written affirmative action plans must be retained for the current and prior year. Additional requirements apply to affirmative action programs for veterans and disabled individuals.
Note: The Office of Federal Contract Compliance Programs (OFCCP) allows contractors to use electronic recordkeeping systems to comply with retention requirements. If contractors maintain records electronically, they must ensure that the records are accurate, complete, and accessible to the OFCCP. Original paper records may be transferred to an electronic system if the system accurately reproduces the original and the copy would be an acceptable duplicate under federal law. If these requirements are met, contractors may dispose of original paper records after they have been transferred to the electronic recordkeeping system. Electronic records must be readily available for review and must be readable and capable of being copied by the OFCCP. Additionally, as with other electronic recordkeeping systems, adequate records management practices should be established and implemented by compliance officers.
After action started: If an investigation by the OFCCP has commenced or a charge of discrimination or related lawsuit has been filed against the employer, all relevant records must be kept until final disposition of the matter.
(41 CFR 60-741.80;41 CFR 60-1.12)
Covered Employers: All employers.
Required: Employee information, including full name, address, birth date (if under the age of 19), occupation, and gender. Complete payroll records, including starting time and day of each workweek or period, regular rate of pay, hours worked, straight and overtime earned, additions to and deductions from wages, total wages paid, and date of payment. For exempt employees, records based on which wages are paid must be kept in sufficient detail to permit calculation of total remuneration for each pay period, including fringe benefits and perks. Records of any retroactive payment of wages. All written plans, trusts, employment contracts, and collective bargaining agreements governed by the FLSA (or, where agreements are not in writing, a written memo summarizing the terms of the agreement). FLSA certificates and notices, sales and purchase records, and certificates of age for each employee under the age of 18.
To be retained: Three years.
(29 CFR 516.2; 29 CFR 516.3; 29 CFR 516.5; 29 CFR 570.5)
Required: Supplementary basic records, including time cards recording the daily starting and stopping time of individual employees, records of actual work completed, and similar basic employment and earnings records; wage rate tables; order, shipping, and billing records; and records used to determine the costs and charges of related additions to and deductions from wages.
To be retained: Two years.
(29 CFR 516.6)
Covered Employers: All employers.
Required: Payroll records; dates when work was distributed and submitted; amount and kind of work; for each lot, the hours worked and piece rates paid; name and address of agent or distributor and of each homeworker. Employers should also retain the journal in which homeworkers record their daily/weekly hours worked and related business expenses.
To be retained: Two years.
(29 USC 211, 29 CFR 516.31)
Covered Employers: Employers wishing to claim the Section 3(m) credit, which allows the reasonable cost of board, lodging, or other facilities to be considered wages.
Required: An employer claiming the Section 3(m) credit must generally keep two kinds of records: (1) records regarding the cost to the employer of providing the housing and (2) records regarding wage calculations taking lodging into account. Records regarding the cost to the employer of providing housing should show how much money the employer spends on the housing, such as proof of mortgage or rental payments and utility bills. Records regarding wage calculations must show Section 3(m) additions to or deductions from wages if those additions or deductions affect the total cash wages owed. If, because of a Section 3(m) credit, an employee receives less in cash wages than the minimum wage, the employer must maintain records showing those additions to or deductions from wages. An employer must also maintain such records if an employee is owed overtime in a workweek and the Section 3(m) credit has been taken.
To be retained: Three years from the date the record is made.
Covered Employers: Employers with employees who receive tips as part of their required wages.
Required:
• Time paid for hours worked each day in a tipped position
• Time paid for hours worked each day in a nontipped position
• Tips received and accounted for or turned over to employer in a weekly or monthly amount
To be retained: Three years from the date the record is made.
(29 USC 211; 29 CFR 516.5, 29 CFR 516.6, and 29 CFR 516.28).
Covered Employers: Private employers with 50 or more employees and public employers.
Required: Detailed payroll and employee identification data; records showing dates of FMLA leave taken by eligible employees and, for intermittent leave, hours of leave taken; copies of all employee notices and documents describing FMLA and policies related to benefits and unpaid leaves; records related to premium payments made by employees on FMLA leave; copies of requests for leave and notices to employees responding to requests for leaves and designating leaves as FMLA leaves; records of any dispute regarding the designation of a leave as FMLA.
Important note on confidentiality: Employee medical records and the medical records of family members must be kept in a separate, secure location in conformance with ADA requirements. The only exceptions are that supervisors and managers may be informed of necessary restrictions on work; first aid and safety personnel may be appropriately informed, if necessary; and government officials investigating pertinent law may be provided relevant information. Records may be kept electronically as long as they are available for transcription or copying.
To be retained: Three years.
(29 CFR 825.500)
Covered Employers: All employers.
Required: Basic employee data including name, address, Social Security number, and birth date; records showing pay periods, daily and weekly hours, overtime, deductions from pay, payments for fringe benefit, and amounts and dates of wage payments; copies of employee withholding forms (Form W-4 or W4-E); annual records showing total wages for each employee and amounts of taxable pay; documents showing the reason taxable pay does not equal total pay; amount paid into state unemployment fund, including deductions from employee pay; and experience rating data.
To be retained: Four years after tax is due or paid.
(26 USC 3301)
Covered Employers: Public employers.
Required: Public employers must maintain public records and make them accessible both to employees and the public as required by law. Even though these laws do not apply to private employers, many states have laws requiring private employers to retain documents that are part of the personnel file and to permit employees to inspect and copy their personnel files.
Please see the state Records section.
Covered Employers: All employer-sponsored group health plans except self-insured plans with 50 or fewer participants.
Required: U.S. Department of Health and Human Services has developed a regulation governing privacy of individual's health records and information and access to medical records. All protected health information (PHI), which includes any individually identifiable health information, is protected, including electronic and paper records and oral communications. The standards are aimed at ensuring the privacy of PHI (i.e., information that can be associated with a specific individual).
The regulation applies to health plans, healthcare clearinghouses, and healthcare providers. Employers who self-insure or are heavily involved in the administration of their health plans are directly affected. Any employer that sponsors a health plan will be at least indirectly affected.
Healthcare providers must obtain consent to disclose PHI for reasons other than treatment, payment, or healthcare operation purposes. Employer sponsored health plans must also obtain an individual's specific authorization to use and disclose any PHI for any reason other than treatment, payment, or healthcare operations. PHI may be disclosed without authorization where required by law. Health plans may disclose PHI to plan sponsors only if the sponsor certifies that it will use the information in accordance with the standards. Plan documents must be amended to provide that disclosure will be limited to that permitted by the standards. Disclosures other than for treatment must limit PHI to the minimum necessary for the intended purpose. Covered entities must establish procedures to limit access to PHI to employees who have a need for such access. A privacy official must be named to administer the entities' privacy policy. All employees who will have access to PHI must be trained in privacy policies and procedures.
Individuals must be able to see and obtain copies of their records, request amendments to the records, and be given a history of most disclosures upon request. Healthcare providers must receive patient authorization to disclose information. Individuals must be given detailed written information concerning their privacy rights. Employers that sponsor health plans may not use PHI held by the plan for employment-related purposes.
(45 CFR 164.500 et seq.)
Covered Employers: All employers.
Required: Employee Eligibility Verification forms (Form I-9) completed and signed by each newly hired employee and the employer. Unless an employer participates in E-Verify, copies of supporting documentation presented as verification are not required. However, if an employer does make copies of these documents during the verification process these copies must also be retained with the I-9 documentation. Since Immigration and Customs Enforcement may inspect the I-9 forms at any time, it is recommended that these be kept in a separate file and not as part of each employee's personnel file.
To be retained: I-9s must be retained for the duration of employment. Upon termination of employment, I-9s must be retained for either 3 years after the worker’s date of hire or 1 year after termination, whichever is later.
(8 CFR 274a (2)(A))
Covered Employers: All employers.
Required: Basic employee data including name, address, Social Security number, and birth date; records showing pay periods, daily and weekly hours, overtime, tips, deductions from pay, taxes withheld, payments for fringe benefits, and amounts and dates of wage payments; copies of employee withholding forms (Form W-4 or W4-E); annual records showing total wages for each employee and amounts of taxable pay; documents showing the reason taxable pay does not equal total pay; amount paid into state unemployment fund, including deductions from employee pay; and experience rating data.
To be retained: Four years after payment, deduction of taxes, or due dates of returns.
Note: Retention can be extended by the IRS as long as records are material to a tax filing; therefore, keeping records indefinitely is safest.
Covered Employers: All employers with 10 or more employees.
Required: The following documents must be maintained by employers subject to the OSH Act:
• Form 300: Log of work-related injuries and illness
• Form 301: Injury and illness incident report
• Form 300A; Annual injuries and illness report
Note: Records of all legally required medical examinations, including records of employee exposure to potentially toxic material or harmful physical agents, must be available to employees for inspection. An equivalent form may be used in place of Form 301 (such as a report of first injury made for purposes of worker's compensation) but the form must include statements related to employee access and employer penalties.
To be retained: Five years.
Privacy concern cases. Employers with a privacy concern case may not enter the employee's name on the logs, but rather should enter “privacy concern case” in place of the name. Privacy cases are injuries or illnesses to an intimate body part or the reproductive system; a sexual assault injury or illness; mental illness; HIV infection, hepatitis, or tuberculosis; needlestick injuries; cuts from objects contaminated with blood or other infectious material; and employee requests for privacy. Employers must keep a separate, confidential list of case numbers and employee names so that cases may be identified and updated.
(29 CFR 1904.1 et seq.)
Required: Records of any medical examination required by the OSH Act or records related to employee exposure to toxic or hazardous agents.
To be retained: Thirty years after termination of employment.
(29 CFR 1910.1020(d))
Caution: The OSH Act has many standards for specialized occupations which have additional record retention requirements. Additionally, beginning January 1, 2017, workplaces with more than 250 workers will be required to submit certain injury and illness data electronically to the Occupational Safety and Health Administration (OSHA). Smaller businesses in “high-risk industries” will also be required to submit these data. For more detailed information on the OSH Act’s requirements and regulations, consult our companion site, Safety.BLR.com®.
Covered Employers: All employers.
Required: Every employer is required to report the hiring or rehiring of each employee to a state directory of new hires within 20 days of hiring. The state must then report to the federal Department of Public Health and Human Services.
(29 USC 653a)
Covered Employers: Public employers and federal contractors or subcontractors with a government contract or subcontract amounting to $10,000 or more.
Required: Employment records, including records related to filling job vacancies, training, promotions, and demotions. Positions for which workers and applicants were considered; reasons for rejection; and accommodations considered, rejected, or made. Records of complaints.
In addition, OFCCP regulations require preparation and maintenance of a written affirmative action program for contractors with 50 or more employees and a contract of $50,000 or more.
Pursuant to OFCCP regulations effective March 24, 2014, contractors required to maintain an affirmative action program must also undertake outreach and positive recruitment activities; annually assess external outreach and recruitment efforts; and perform data collection analysis documenting (1) the number of applicants who self-identified as individuals with disabilities or who are otherwise known to be individuals with disabilities; (2) the total number of job openings and jobs filled; (3) the total number of applicants for all jobs; (4) the number of applicants with disabilities hired; and (5) the total number of applicants hired.
Please see the Affirmative Action section.
To be retained: Employment and personnel records must be maintained for two years for contractors with more than 150 employees or a government contract of $150,000 or more; 1 year for employers with fewer than 150 employees or a government contract of $150,000 or less.
Written affirmative action plans must be retained for the current and prior year. Additional documentation related to affirmative action programs, including external outreach and recruitment efforts and data collection analysis results, must be retained for 3 years.
After action started: Once a discrimination action is begun the employer must retain all records regarding the employee until final disposition of the action.
(41 CFR 60-741.80(a) and 41 CFR 60-741.80(b))
Covered Employers: All employers.
Required: Each employee's name; address; Social Security number; date, amount, and period of services paid for; amount of pay taxable as wages; reasons for discrepancies; amount of tax collected; date; details of adjustment or settlement of taxes; tips reported; and employer filing records.
To be retained: Four years.
(26 USC 3101)
Covered Employers: Federal contractors and subcontractors with contracts of $100,000 or more.
Required: Creation and maintenance of an affirmative action plan for qualified covered veterans (disabled veterans, recently separated veterans, active duty wartime or campaign badge veterans, and armed forces service medal veterans).
Pursuant to OFCCP regulations effective March 24, 2014, covered contractors must undertake outreach and positive recruitment activities; annually assess external outreach and recruitment efforts; and perform data collection analysis documenting (1) the number of applicants who self-identified as protected veterans; (2) the total number of job openings and jobs filled; (3) the total number of applicants for all jobs; (4) the number of protected veteran applicants hired; and (5) the total number of applicants hired. In addition, contractors must establish annual hiring benchmarks for protected veterans and must retain documentation of the factors considered in establishing this benchmark.
Please see the national Affirmative Action section.
To be retained: Written affirmative action plans must be retained for the current and prior year. Additional documentation related to these affirmative action programs, including external outreach and recruitment efforts, data collection analysis results, and factors considered in establishing annual hiring benchmarks, must be retained for 3 years.
(41 CFR 60-300.80)
Covered employers: The Jobs for Veterans Act (JVA), an amendment to VEVRAA, applies to government contractors with contracts of $50,000 or more entered into before December 1, 2003, and contracts of $100,000 or more entered into after December 1, 2003.
Required: The law applies to any personnel or employment record that is made or kept by a covered contractor, including records related to requests for reasonable accommodation, the results of any physical examination, job advertisements and postings, applications and resumes, tests and test results, interview notes, and other records pertaining to hiring, assignment, promotion, demotion, transfer, layoff, termination, rates of pay, or other terms of compensation and selection for training or apprenticeship.
To be retained: Personnel or employment records must be retained for 2 years from the date the record was made or the personnel action involved, whichever is later.
However, if the contractor has fewer than 150 employees or does not have a contract of at least $150,000, the records must be retained for 1 year from the date it was made or the personnel action involved, whichever is later. In addition, if the contractor has received a notice that a discrimination complaint has been filed, that a compliance evaluation has been initiated, or that an enforcement action has been commenced, the contractor must keep all relevant personnel records until final disposition of the complaint, action, or evaluation.
(41 CFR 60-300.80)
Covered Employers: Employers that manufacture, fabricate, or assemble equipment for the federal government when the value of the contract is $10,000 or more.
Required: Certificates of age for minors employed on public contracts; title and address of the office issuing the certificate; date of issuance; number of certificate; and name, address, and birth date of the minor as they appear on the certificate.
To be retained: Three years from date of entry.
(41 USC 6501 et seq.)
Required: Wage and hour records, including the rate of wages, amount paid each pay period, hours worked daily and weekly, the period during which the employee was engaged on the government contract, and the identification number of such contract. Name, address, sex, occupation, and birth date for employees under the age of 19.
To be retained: Three years.
Required: Employment and earnings record, employer documents on which are entered daily starting and stopping times of employees (or units produced when these determine pay period earnings), wage rate tables (i.e., employer tables providing the rates used in computing earnings), and work-time schedules.
To be retained: Three years.
The Federal Rules of Civil Procedure require employers to preserve electronically stored information (ESI) once the employer reasonably anticipates litigation (e.g., when an employee complains to Human Resources or the company receives a communication from an attorney). The federal rules apply to any company that may find itself in federal court for any type of lawsuit.
Required: Examples of ESI include e-mails sent to or from a desktop computer, a laptop computer, or mobile device; voice mails; instant messages; text messages; backup tapes of data if stored in a way permitting future retrieval; and mirror images (dated snapshots of a computer system). Electronic documents must be produced in their native form, so it is important for employers to maintain the integrity of ESI. The rules cover key players involved in employment decisions, anyone "cc’d" or "bcc’d" on a message sent to or by a key player, and anyone (including secretaries and assistants) who prepares documents for key players. An employer's obligation to preserve this material is ongoing, and ESI created after litigation commences should be stored in separate files.
To be retained: The federal rules prohibit the imposition of sanctions upon an employer for failing to provide ESI lost as a result of the "routine, good-faith operation of an electronic information system." Nevertheless, companies have been penalized for delays or the failure to timely produce ESI. Companies with a 30-, 60-, or 90-day retention policy for ESI should seriously consider changing their policy in light of the new rules. It is good policy to retain records in accordance with the applicable statutes of limitation for various claims that may be brought against employers. Statutes of limitation vary by state for certain claims. It is also good policy to put a "litigation hold" on routine data erasing policies when a company is under the duty to preserve ESI because of pending or reasonably anticipated litigation.
Last reviewed on July 05, 2016.
Related Topics:
National
The information provided here highlights some of the more important recordkeeping requirements that apply to most employers, regardless of industry.
Employers should keep in mind that the requirements for retaining records set forth in the various statutes are minimums. Since these records are critical to the employer if its compliance with federal or state law is questioned or if it must defend itself against employment-related litigation, employers may wish to retain employment-related records for much longer periods of time. Complete and accurate records are often an employer's best defense to employment-related litigation and wage and hour complaints.
In addition, some states have specific laws related to the maintenance of personnel files and other documents that may require longer retention periods.
Please see the state Records section.
Depending on the legal authority and the type of record, statutory retention requirements can vary from 1 year to 30 years after termination of employment. Keeping up with these individual requirements and establishing a workable "tickler" system to identify when and which records may be safely destroyed can be cumbersome, even for small workplaces.
Therefore, if the availability of secure file storage space is not at issue, adherence to the following general safe harbor retention periods may be preferable to researching applicable state or federal law and calculating the unique retention period required for each individual law, record type, and employee in question.
• Personnel records: 7 years after termination of employment.
• Medical and benefits records: 6 years as long as no toxic exposure occurred.
• Employment verification (I-9) records: 3 years after termination.
• Hiring and application records: 2 years after related personnel decision.
• Any other miscellaneous documents and records relating to a charge, complaint, enforcement action, or other compliance review: until the final disposition of the related action.
As noted above, the recordkeeping requirements provided in this section are minimums based on specific requirements set forth by federal laws. However, many employers may wish to keep records even longer, especially since the 2009 passage of the Lilly Ledbetter Fair Pay Act (Ledbetter Act). Though the Ledbetter Act does not contain specific recordkeeping requirements, it has changed the landscape of employee recordkeeping since its passage.
The Ledbetter Act provides that when an employee is affected by a discriminatory pay decision or practice, then each paycheck that is issued based on that pay decision or practice constitutes an individual discriminatory act in itself. The practical effect of this law is that each time an employee is paid (where that pay has been affected by unlawful discrimination), then the employee's time limit to file a claim for pay discrimination resets.
The recordkeeping issue arises if the original decision upon which the employee's pay was based occurred many years in the past. For example, in the case upon which the Lilly Ledbetter Act was based, the discriminatory pay decision had occurred more than 20 years in the past. However, Lilly Ledbetter argued—and the Ledbetter Act now holds—that every subsequent paycheck she received was a new act of discrimination stemming from that decision made 20 years in the past.
The Act creates a difficult recordkeeping burden for employers, as an employer now in a position to defend against such a charge of discrimination would be required to prove that no discrimination occurred—a process that could require unearthing records related to a payroll decision made well outside federal or state statutory record retention requirements, as well as records related to similarly situated employees who may have long since left the company.
As a result, employers concerned about defending charges of pay discrimination may opt to preserve personnel records—particularly those related to pay decisions such as promotions or evaluations—for a longer period than the statutory requirements. If you are concerned that your compensation plan may be discriminatory or that current pay decisions may retain ties to past discriminatory practices, consultation with legal counsel is recommended both to address and remedy the compensation plan and to establish best practices for managing records related to the compensation practice.
Because standards of technology change so rapidly, the laws that address electronic recordkeeping do not impose many specific requirements. It would be of little help for documents to be required to be stored in a specific document format or at a set resolution, since those standards may be outdated just a few years from now.
What we do have are some general, commonsense guidelines for electronic document retention.
Reliable and accurate records. Your process must produce documents that are accurate, authentic, reliable, and that have their integrity preserved. What does this mean in practice? Electronic documents need to represent an exact replica of the paper version. If the document is a scan, it should include all of the text on the document—both sides, with no margins or other identifiers cut off. The scan should be of a resolution and quality that is high enough to be easily read. If the document has color components, such as a signature in blue ink, the scan should also be a color scan.
Unalterable documents. Additionally, when a document is being preserved, it must be in an unalterable format. As with general recordkeeping standards, there is no specific file format that is required; however, easily edited formats such as Word and Excel® are not sufficient. These programs are certainly useful for document creation, but once a file needs to be committed to long-term storage, it needs to be exported to a PDF, image, or similar format that demonstrates that no further changes were made to the file after the date of export.
Readily retrievable documents. Your documents also need to be readily retrievable for inspection—after all, it wouldn’t do much good to convert documents to electronic format if they are then disorganized and difficult to retrieve or, in a worst-case scenario, subject to file corruption, deletion, or other loss.
Able to generate paper version. Finally, just as you need the paper version to be exactly replicated into digital copy, you also need to be able to regenerate a high-quality paper copy from the digital format.
For specific regulatory guidance, see, for example, 29 CFR 2520.107-1, pertaining to the use of electronic media for maintenance and retention of Employee Retirement Income Security Act (ERISA) records.
The following list provides more specific details on the individual requirements of key federal recordkeeping laws. As noted, these requirements are minimums—employers may certainly maintain records for longer, more conservative periods, particularly in light of the Ledbetter Act.
Covered Employers: Employers with 20 or more employees.
Required: Payroll or other records for all full-time, part-time, and temporary employees that include each employee's name, address, date of birth, occupation, rates of pay, and weekly compensation.
To be retained: Three years.
Required: In addition, employers must retain records related to job applications, resumes, and other forms of job inquiries; promotions, demotions, and transfers; selection for overtime, training, layoff, recall, or discharge; job orders submitted to employment agencies; candidate test papers for any position; physical exam results if used in employment decisions; job ads or internal notices relating to job openings; employee benefit plans; and copies of any written seniority and merit systems.
To be retained: One year from the date of action or after termination of the benefit plan or seniority system.
After action started: If a charge of age discrimination or a lawsuit has been filed against the employer under the ADEA, all relevant records must be kept until final disposition of the matter.
(29 USC 626(a), 29 CFR 1627.3)
Covered Employers: Employers with 20 or more employees.
Required: Payroll or other records for all full-time, part-time and temporary employees that include each employee's name, address, date of birth, occupation, rates of pay, and weekly compensation.
To be retained: Three years.
Recommended, not required: Settlement or severance agreements that include signed waivers of employee ADEA rights to sue for age discrimination along with all related documents.
To be retained: At least 1 year from the date employment is terminated.
(29 USC 626(a), 626(f))
Covered Employers: Employers with 15 or more employees.
Required: Job résumés, application forms, notes on interviews, and notes on reference checks; records of promotion, demotion, transfer, layoff, termination, rate of pay or other compensation; selection for training or apprenticeship, including application forms and test papers; applications for disability benefits; and requests for reasonable job accommodation.
Note that information from medical exams is confidential, must be maintained separately, and access must be limited to the employee's supervisors and managers; safety workers; and workers' compensation or other insurance carrier.
To be retained: One year from making the record or taking the personnel action.
After action started: If a charge of disability discrimination or a lawsuit has been filed against the employer under the ADA or GINA, all relevant records must be kept until final disposition of the matter.
(29 CFR 1602.14)
Covered Employers: Employers with 15 or more employees.
Required: Job résumés; application forms; interview notes; notes on reference checks; tests and test results; job advertisements and postings; all records related to hiring, promotion, demotion, transfer, layoff, and termination; payroll records including rate of pay and other compensation; requests for accommodation; and records related to selection for training or apprenticeship.
To be retained: One year from making the record or taking the personnel action.
Note: Apprenticeship records must be kept for the longest of the following: 2 years from the date an application for an apprenticeship is received, 1 year from the date of the EEO-2 report, or until the end of the apprenticeship.
Covered Employers: Employers with 100 or more employees and federal contractors with 50 or more employees.
Required: Form EEO-1 for each location, unit and/or the company headquarters. The completed EEO-1 forms must be filed annually with the Equal Employment Opportunity Commission.
To be retained: A copy of the current EEO-1 Report must be retained by the employer.
Covered Employers: Employers with more than 150 employees and more than $150,000 in government contracts.
Required: Affirmative Action plans and all supporting evidence of good faith efforts to comply with affirmative action laws.
To be retained: Two years.
After action started: If a charge of discrimination or a lawsuit has been filed against the employer under Title VII, all relevant records must be kept until final disposition of the matter.
(29 CFR 1602.7–1602.14, 29 CFR 1602.20–1602.21, 41 CFR 60-1.7)
Covered Employers: All employers with 20 or more employees who offer employees group health insurance benefits.
Required: COBRA does not have specific recordkeeping requirements. However, if an employer's compliance with COBRA is questioned, the burden of proof is on the employer and, absent appropriate records, the employer will not be able to show that it complied with the law.
Therefore, as a best practice, employers should keep lists of employees covered by a group health plan along with their addresses; records related to any qualifying event (i.e., terminations, hour reductions, leaves of absence, deaths of employees, divorce, Medicare eligibility, or disability status); records related to retirees covered by the group health plan; records of COBRA premium payments; records of changes made to the group health plan; records of employees denied coverage and the reasons for each denial; copies of notices both general and specific informing employees of their rights under COBRA; evidence that required notices were sent and received by employees and/or covered beneficiaries (i.e., copies of return receipt cards); and completed election forms.
To be retained: Even though employees are only eligible for COBRA for the 18-month period following a qualifying event, employers should retain records for at least 3 years in the event a claim is filed by an employee claiming the employer did not notify him or her of rights to continue coverage or terminated coverage before the 18-month period had expired.
Covered Employers: Employers that are federal contractors or subcontractors.
Required: Payroll records containing name; address; Social Security number; gender; date of birth; occupation; job classification; rate of hourly, daily, and weekly pay; rates of contributions or costs anticipated for fringe benefits or cash equivalents; hours worked; deductions; and actual pay for each employee.
Note: Contractors employing apprentices or trainees under approved programs must maintain written evidence of the registration of the apprenticeship programs and certification of trainee programs, the registration of apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.
To be retained: Three years from completion of the contract.
(29 CFR 5.5(a)(3))
Covered Employers: All employers.
Required: For each employee required to submit to a polygraph test, a copy of the statement provided to the employee informing him or her of the specific incident under investigation and the basis for the testing; any records identifying the employer's loss that is being investigated; records identifying the nature of the employee's access to the person/property being investigated; a copy of any notice given the examiner identifying the person(s) to be examined; a copy of any reports, questions, lists, and other records given the employer by the examiner.
When an employer is permitted to request that a prospective employee take a polygraph examination, it must retain a copy of the written statement setting forth the time and place of the exam and of the individual's right to consult with an attorney.
To be retained: Three years from the date the polygraph test us administered or, if the employee did not take the test, from the date it was scheduled. Records should be kept in a confidential location at the employee's place of employment. Disclosure of test results should be limited to the examinee, employer, court, or government agency subject to an order of the court.
(29 CFR 801.30, 29 CFR 801.35)
Covered Employers: All employers who maintain employee benefit plans that are subject to ERISA.
Required: Annual reports; summary plan descriptions (SPD); records supporting data in SPDs; notices of plan changes, amendments, or termination; and related welfare and pension reports.
To be retained: Six years.
Note: Records needed to determine a participant's eligibility for benefits must be retained as long as relevant.
(29 USC 1027; 29 CFR 2520.101–1)
Covered Employers: All employers.
Required: Records explaining any wage differentials for employees of different genders. This may include records related to the payment of wages, wage rates, job evaluations, job descriptions, merit systems, seniority systems, collective bargaining agreements, or descriptions of practices or other matters that describe or explain the basis for payment of any wage differential to employees of the opposite sex in the same establishment and that may be pertinent to a determination whether said differential is based on a factor other than sex.
To be retained: Two years, at minimum.
(29 CFR 1620.32)
Covered Employers: All employers that are federal contractors or subcontractors.
Required: Personnel and employment records relating to hiring, assignment, promotions, demotions, transfers, termination, pay rates, wage increases, and other compensation terms; selection for training or apprenticeship; reasonable accommodation requests; physical exam requests; job advertisements and postings; applications, résumés, tests and test results; and interview notes.
Certain contractors are also required to develop written affirmative action plans. Please see the Affirmative Action section.
To be retained: Covered employers with 150 or more employees must maintain personnel and employment records for 2 years. Covered employers with fewer than 150 employees or government contracts that are less than $150,000 must maintain personnel and employment records for 1 year. Written affirmative action plans must be retained for the current and prior year. Additional requirements apply to affirmative action programs for veterans and disabled individuals.
Note: The Office of Federal Contract Compliance Programs (OFCCP) allows contractors to use electronic recordkeeping systems to comply with retention requirements. If contractors maintain records electronically, they must ensure that the records are accurate, complete, and accessible to the OFCCP. Original paper records may be transferred to an electronic system if the system accurately reproduces the original and the copy would be an acceptable duplicate under federal law. If these requirements are met, contractors may dispose of original paper records after they have been transferred to the electronic recordkeeping system. Electronic records must be readily available for review and must be readable and capable of being copied by the OFCCP. Additionally, as with other electronic recordkeeping systems, adequate records management practices should be established and implemented by compliance officers.
After action started: If an investigation by the OFCCP has commenced or a charge of discrimination or related lawsuit has been filed against the employer, all relevant records must be kept until final disposition of the matter.
(41 CFR 60-741.80;41 CFR 60-1.12)
Covered Employers: All employers.
Required: Employee information, including full name, address, birth date (if under the age of 19), occupation, and gender. Complete payroll records, including starting time and day of each workweek or period, regular rate of pay, hours worked, straight and overtime earned, additions to and deductions from wages, total wages paid, and date of payment. For exempt employees, records based on which wages are paid must be kept in sufficient detail to permit calculation of total remuneration for each pay period, including fringe benefits and perks. Records of any retroactive payment of wages. All written plans, trusts, employment contracts, and collective bargaining agreements governed by the FLSA (or, where agreements are not in writing, a written memo summarizing the terms of the agreement). FLSA certificates and notices, sales and purchase records, and certificates of age for each employee under the age of 18.
To be retained: Three years.
(29 CFR 516.2; 29 CFR 516.3; 29 CFR 516.5; 29 CFR 570.5)
Required: Supplementary basic records, including time cards recording the daily starting and stopping time of individual employees, records of actual work completed, and similar basic employment and earnings records; wage rate tables; order, shipping, and billing records; and records used to determine the costs and charges of related additions to and deductions from wages.
To be retained: Two years.
(29 CFR 516.6)
Covered Employers: All employers.
Required: Payroll records; dates when work was distributed and submitted; amount and kind of work; for each lot, the hours worked and piece rates paid; name and address of agent or distributor and of each homeworker. Employers should also retain the journal in which homeworkers record their daily/weekly hours worked and related business expenses.
To be retained: Two years.
(29 USC 211, 29 CFR 516.31)
Covered Employers: Employers wishing to claim the Section 3(m) credit, which allows the reasonable cost of board, lodging, or other facilities to be considered wages.
Required: An employer claiming the Section 3(m) credit must generally keep two kinds of records: (1) records regarding the cost to the employer of providing the housing and (2) records regarding wage calculations taking lodging into account. Records regarding the cost to the employer of providing housing should show how much money the employer spends on the housing, such as proof of mortgage or rental payments and utility bills. Records regarding wage calculations must show Section 3(m) additions to or deductions from wages if those additions or deductions affect the total cash wages owed. If, because of a Section 3(m) credit, an employee receives less in cash wages than the minimum wage, the employer must maintain records showing those additions to or deductions from wages. An employer must also maintain such records if an employee is owed overtime in a workweek and the Section 3(m) credit has been taken.
To be retained: Three years from the date the record is made.
Covered Employers: Employers with employees who receive tips as part of their required wages.
Required:
• Time paid for hours worked each day in a tipped position
• Time paid for hours worked each day in a nontipped position
• Tips received and accounted for or turned over to employer in a weekly or monthly amount
To be retained: Three years from the date the record is made.
(29 USC 211; 29 CFR 516.5, 29 CFR 516.6, and 29 CFR 516.28).
Covered Employers: Private employers with 50 or more employees and public employers.
Required: Detailed payroll and employee identification data; records showing dates of FMLA leave taken by eligible employees and, for intermittent leave, hours of leave taken; copies of all employee notices and documents describing FMLA and policies related to benefits and unpaid leaves; records related to premium payments made by employees on FMLA leave; copies of requests for leave and notices to employees responding to requests for leaves and designating leaves as FMLA leaves; records of any dispute regarding the designation of a leave as FMLA.
Important note on confidentiality: Employee medical records and the medical records of family members must be kept in a separate, secure location in conformance with ADA requirements. The only exceptions are that supervisors and managers may be informed of necessary restrictions on work; first aid and safety personnel may be appropriately informed, if necessary; and government officials investigating pertinent law may be provided relevant information. Records may be kept electronically as long as they are available for transcription or copying.
To be retained: Three years.
(29 CFR 825.500)
Covered Employers: All employers.
Required: Basic employee data including name, address, Social Security number, and birth date; records showing pay periods, daily and weekly hours, overtime, deductions from pay, payments for fringe benefit, and amounts and dates of wage payments; copies of employee withholding forms (Form W-4 or W4-E); annual records showing total wages for each employee and amounts of taxable pay; documents showing the reason taxable pay does not equal total pay; amount paid into state unemployment fund, including deductions from employee pay; and experience rating data.
To be retained: Four years after tax is due or paid.
(26 USC 3301)
Covered Employers: Public employers.
Required: Public employers must maintain public records and make them accessible both to employees and the public as required by law. Even though these laws do not apply to private employers, many states have laws requiring private employers to retain documents that are part of the personnel file and to permit employees to inspect and copy their personnel files.
Please see the state Records section.
Covered Employers: All employer-sponsored group health plans except self-insured plans with 50 or fewer participants.
Required: U.S. Department of Health and Human Services has developed a regulation governing privacy of individual's health records and information and access to medical records. All protected health information (PHI), which includes any individually identifiable health information, is protected, including electronic and paper records and oral communications. The standards are aimed at ensuring the privacy of PHI (i.e., information that can be associated with a specific individual).
The regulation applies to health plans, healthcare clearinghouses, and healthcare providers. Employers who self-insure or are heavily involved in the administration of their health plans are directly affected. Any employer that sponsors a health plan will be at least indirectly affected.
Healthcare providers must obtain consent to disclose PHI for reasons other than treatment, payment, or healthcare operation purposes. Employer sponsored health plans must also obtain an individual's specific authorization to use and disclose any PHI for any reason other than treatment, payment, or healthcare operations. PHI may be disclosed without authorization where required by law. Health plans may disclose PHI to plan sponsors only if the sponsor certifies that it will use the information in accordance with the standards. Plan documents must be amended to provide that disclosure will be limited to that permitted by the standards. Disclosures other than for treatment must limit PHI to the minimum necessary for the intended purpose. Covered entities must establish procedures to limit access to PHI to employees who have a need for such access. A privacy official must be named to administer the entities' privacy policy. All employees who will have access to PHI must be trained in privacy policies and procedures.
Individuals must be able to see and obtain copies of their records, request amendments to the records, and be given a history of most disclosures upon request. Healthcare providers must receive patient authorization to disclose information. Individuals must be given detailed written information concerning their privacy rights. Employers that sponsor health plans may not use PHI held by the plan for employment-related purposes.
(45 CFR 164.500 et seq.)
Covered Employers: All employers.
Required: Employee Eligibility Verification forms (Form I-9) completed and signed by each newly hired employee and the employer. Unless an employer participates in E-Verify, copies of supporting documentation presented as verification are not required. However, if an employer does make copies of these documents during the verification process these copies must also be retained with the I-9 documentation. Since Immigration and Customs Enforcement may inspect the I-9 forms at any time, it is recommended that these be kept in a separate file and not as part of each employee's personnel file.
To be retained: I-9s must be retained for the duration of employment. Upon termination of employment, I-9s must be retained for either 3 years after the worker’s date of hire or 1 year after termination, whichever is later.
(8 CFR 274a (2)(A))
Covered Employers: All employers.
Required: Basic employee data including name, address, Social Security number, and birth date; records showing pay periods, daily and weekly hours, overtime, tips, deductions from pay, taxes withheld, payments for fringe benefits, and amounts and dates of wage payments; copies of employee withholding forms (Form W-4 or W4-E); annual records showing total wages for each employee and amounts of taxable pay; documents showing the reason taxable pay does not equal total pay; amount paid into state unemployment fund, including deductions from employee pay; and experience rating data.
To be retained: Four years after payment, deduction of taxes, or due dates of returns.
Note: Retention can be extended by the IRS as long as records are material to a tax filing; therefore, keeping records indefinitely is safest.
Covered Employers: All employers with 10 or more employees.
Required: The following documents must be maintained by employers subject to the OSH Act:
• Form 300: Log of work-related injuries and illness
• Form 301: Injury and illness incident report
• Form 300A; Annual injuries and illness report
Note: Records of all legally required medical examinations, including records of employee exposure to potentially toxic material or harmful physical agents, must be available to employees for inspection. An equivalent form may be used in place of Form 301 (such as a report of first injury made for purposes of worker's compensation) but the form must include statements related to employee access and employer penalties.
To be retained: Five years.
Privacy concern cases. Employers with a privacy concern case may not enter the employee's name on the logs, but rather should enter “privacy concern case” in place of the name. Privacy cases are injuries or illnesses to an intimate body part or the reproductive system; a sexual assault injury or illness; mental illness; HIV infection, hepatitis, or tuberculosis; needlestick injuries; cuts from objects contaminated with blood or other infectious material; and employee requests for privacy. Employers must keep a separate, confidential list of case numbers and employee names so that cases may be identified and updated.
(29 CFR 1904.1 et seq.)
Required: Records of any medical examination required by the OSH Act or records related to employee exposure to toxic or hazardous agents.
To be retained: Thirty years after termination of employment.
(29 CFR 1910.1020(d))
Caution: The OSH Act has many standards for specialized occupations which have additional record retention requirements. Additionally, beginning January 1, 2017, workplaces with more than 250 workers will be required to submit certain injury and illness data electronically to the Occupational Safety and Health Administration (OSHA). Smaller businesses in “high-risk industries” will also be required to submit these data. For more detailed information on the OSH Act’s requirements and regulations, consult our companion site, Safety.BLR.com®.
Covered Employers: All employers.
Required: Every employer is required to report the hiring or rehiring of each employee to a state directory of new hires within 20 days of hiring. The state must then report to the federal Department of Public Health and Human Services.
(29 USC 653a)
Covered Employers: Public employers and federal contractors or subcontractors with a government contract or subcontract amounting to $10,000 or more.
Required: Employment records, including records related to filling job vacancies, training, promotions, and demotions. Positions for which workers and applicants were considered; reasons for rejection; and accommodations considered, rejected, or made. Records of complaints.
In addition, OFCCP regulations require preparation and maintenance of a written affirmative action program for contractors with 50 or more employees and a contract of $50,000 or more.
Pursuant to OFCCP regulations effective March 24, 2014, contractors required to maintain an affirmative action program must also undertake outreach and positive recruitment activities; annually assess external outreach and recruitment efforts; and perform data collection analysis documenting (1) the number of applicants who self-identified as individuals with disabilities or who are otherwise known to be individuals with disabilities; (2) the total number of job openings and jobs filled; (3) the total number of applicants for all jobs; (4) the number of applicants with disabilities hired; and (5) the total number of applicants hired.
Please see the Affirmative Action section.
To be retained: Employment and personnel records must be maintained for two years for contractors with more than 150 employees or a government contract of $150,000 or more; 1 year for employers with fewer than 150 employees or a government contract of $150,000 or less.
Written affirmative action plans must be retained for the current and prior year. Additional documentation related to affirmative action programs, including external outreach and recruitment efforts and data collection analysis results, must be retained for 3 years.
After action started: Once a discrimination action is begun the employer must retain all records regarding the employee until final disposition of the action.
(41 CFR 60-741.80(a) and 41 CFR 60-741.80(b))
Covered Employers: All employers.
Required: Each employee's name; address; Social Security number; date, amount, and period of services paid for; amount of pay taxable as wages; reasons for discrepancies; amount of tax collected; date; details of adjustment or settlement of taxes; tips reported; and employer filing records.
To be retained: Four years.
(26 USC 3101)
Covered Employers: Federal contractors and subcontractors with contracts of $100,000 or more.
Required: Creation and maintenance of an affirmative action plan for qualified covered veterans (disabled veterans, recently separated veterans, active duty wartime or campaign badge veterans, and armed forces service medal veterans).
Pursuant to OFCCP regulations effective March 24, 2014, covered contractors must undertake outreach and positive recruitment activities; annually assess external outreach and recruitment efforts; and perform data collection analysis documenting (1) the number of applicants who self-identified as protected veterans; (2) the total number of job openings and jobs filled; (3) the total number of applicants for all jobs; (4) the number of protected veteran applicants hired; and (5) the total number of applicants hired. In addition, contractors must establish annual hiring benchmarks for protected veterans and must retain documentation of the factors considered in establishing this benchmark.
Please see the national Affirmative Action section.
To be retained: Written affirmative action plans must be retained for the current and prior year. Additional documentation related to these affirmative action programs, including external outreach and recruitment efforts, data collection analysis results, and factors considered in establishing annual hiring benchmarks, must be retained for 3 years.
(41 CFR 60-300.80)
Covered employers: The Jobs for Veterans Act (JVA), an amendment to VEVRAA, applies to government contractors with contracts of $50,000 or more entered into before December 1, 2003, and contracts of $100,000 or more entered into after December 1, 2003.
Required: The law applies to any personnel or employment record that is made or kept by a covered contractor, including records related to requests for reasonable accommodation, the results of any physical examination, job advertisements and postings, applications and resumes, tests and test results, interview notes, and other records pertaining to hiring, assignment, promotion, demotion, transfer, layoff, termination, rates of pay, or other terms of compensation and selection for training or apprenticeship.
To be retained: Personnel or employment records must be retained for 2 years from the date the record was made or the personnel action involved, whichever is later.
However, if the contractor has fewer than 150 employees or does not have a contract of at least $150,000, the records must be retained for 1 year from the date it was made or the personnel action involved, whichever is later. In addition, if the contractor has received a notice that a discrimination complaint has been filed, that a compliance evaluation has been initiated, or that an enforcement action has been commenced, the contractor must keep all relevant personnel records until final disposition of the complaint, action, or evaluation.
(41 CFR 60-300.80)
Covered Employers: Employers that manufacture, fabricate, or assemble equipment for the federal government when the value of the contract is $10,000 or more.
Required: Certificates of age for minors employed on public contracts; title and address of the office issuing the certificate; date of issuance; number of certificate; and name, address, and birth date of the minor as they appear on the certificate.
To be retained: Three years from date of entry.
(41 USC 6501 et seq.)
Required: Wage and hour records, including the rate of wages, amount paid each pay period, hours worked daily and weekly, the period during which the employee was engaged on the government contract, and the identification number of such contract. Name, address, sex, occupation, and birth date for employees under the age of 19.
To be retained: Three years.
Required: Employment and earnings record, employer documents on which are entered daily starting and stopping times of employees (or units produced when these determine pay period earnings), wage rate tables (i.e., employer tables providing the rates used in computing earnings), and work-time schedules.
To be retained: Three years.
The Federal Rules of Civil Procedure require employers to preserve electronically stored information (ESI) once the employer reasonably anticipates litigation (e.g., when an employee complains to Human Resources or the company receives a communication from an attorney). The federal rules apply to any company that may find itself in federal court for any type of lawsuit.
Required: Examples of ESI include e-mails sent to or from a desktop computer, a laptop computer, or mobile device; voice mails; instant messages; text messages; backup tapes of data if stored in a way permitting future retrieval; and mirror images (dated snapshots of a computer system). Electronic documents must be produced in their native form, so it is important for employers to maintain the integrity of ESI. The rules cover key players involved in employment decisions, anyone "cc’d" or "bcc’d" on a message sent to or by a key player, and anyone (including secretaries and assistants) who prepares documents for key players. An employer's obligation to preserve this material is ongoing, and ESI created after litigation commences should be stored in separate files.
To be retained: The federal rules prohibit the imposition of sanctions upon an employer for failing to provide ESI lost as a result of the "routine, good-faith operation of an electronic information system." Nevertheless, companies have been penalized for delays or the failure to timely produce ESI. Companies with a 30-, 60-, or 90-day retention policy for ESI should seriously consider changing their policy in light of the new rules. It is good policy to retain records in accordance with the applicable statutes of limitation for various claims that may be brought against employers. Statutes of limitation vary by state for certain claims. It is also good policy to put a "litigation hold" on routine data erasing policies when a company is under the duty to preserve ESI because of pending or reasonably anticipated litigation.
Last reviewed on July 05, 2016.
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