Federal Laws Requiring Retention of Employee Records
Age Discrimination in Employment Act (ADEA)
Requirements: 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.
Retention Period: Three (3) years.
Additional Requirements: 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 order 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; and employee benefit plans.
Retention Period: One year from the date of action or after termination of the benefit plan.
After An Action is Started: If a charge of age discrimination or a lawsuit has been filed against the university under the ADEA, all relevant records must be kept until disposition of the matter.
Older Workers Benefit Protection Act (OWBPA) (Amendment to ADEA)
Requirements: Payroll and 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.
Retention Period: Three (3) years.
Additional Recommendation (Not Required): Settlement or severance agreements that include signed waivers of employee ADEA rights to sue for age discrimination along with all related documents.
Retention Period: At least 1 year from the date employment is terminated.
Americans with Disabilities Act (ADA)
Requirements: Job resumes, 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 form 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.
Retention Period: One year from making the record or taking the personnel action.
After An Action Is Started: If a charge of disability discrimination or a lawsuit has been filed against the university under the ADA, all relevant records must be kept until final disposition of the matter.
Civil Rights Act of 1964, as Amended in 1991 (Title VII)
Requirements: Job resumes; 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.
Retention Period: One year from making the record or taking the personnel action. Apprentice records must be kept for one year from the date an application for an apprenticeship is received or from when a successful apprenticeship ends, whichever is later.
Additional Requirements: Form EEO-1 for each location, unit and/or company headquarters. The completed EEO-1 forms must be filed annually with the Equal Employment Opportunity Commission. Affirmative Action plans and all supporting evidence of good faith efforts to comply with affirmative action laws.
Retention Period: Two (2) years.
After An Action Is Started: If a charge of discrimination or a lawsuit has been filed against the university under Title VII, all relevant records must be kept until final disposition of the matter.
Consolidated Omnibus Budget Reconciliation Act (COBRA)
Requirements: COBRA does not have specific record keeping requirements. However, if the university's compliance with COBRA is questioned, the burden of proof is on the university and, absent appropriate records, the university will not be able to show that it complied with the law. Therefore, as a best practice, the university 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 the 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.
Retention Period: 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 them of their rights to continue coverage or terminated coverage before the 18-month period had expired.
Davis-Bacon Act
Applies to federally-funded contractors and sub-contractors.
Requirements: Payroll records containing name; address; social security number; gender; date of birth; occupation; job classification; rate of hourly, daily, and weekly pay; rate of contributions or costs anticipated for fringe benefits or cash equivalents; hours worked; deductions; and actual pay for each employee. 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.
Retention Period: Three (3) years from completion of the contract.
Employee Polygraph Protection Act (EPPA)
Requirements: 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.
Retention Period: Three years from the date the polygraph test is 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.
Employee Retirement Income Security Act (ERISA)
Requirements: Annual reports; Summary Plan Descriptions (SPD); records supporting data in SPDs; notices of plan changes, amendments, or termination; and related welfare and pension reports. Records needed to determine a participant's eligibility for benefits must be retained as long as relevant.
Retention Period: Six (6) years.
Equal Pay Act (EPA)
Requirements: Payroll or other records for a full-time, part-time and temporary employees that include each employee's name, gender, occupation, job title, rate of pay and weekly compensation. In addition, the company must obtain documents related to job evaluations and wage rates; job descriptions; description of merit or seniority systems; and other explanations of wage differentials for employees of different genders.
Retention Period: Three (3) years.
Requirements: Collective bargaining agreements; employee and payroll information; explanation of merit or seniority systems; employee time sheets or cards.
Retention Period: Three years after agreement ends or after records are made, except that explanations of merit or seniority systems and employee time sheets or cards must only be retained for 2 years.
Executive Order 11246/OFCCP Rules
Applies to federal contractors and federally-assisted construction contractors and subcontractors.
Requirements: 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, resumes, tests and test results; interview notes; and affirmative action plans for the current and prior year including utilization analyses, application logs, and other supporting documents.
Retention Period: Affirmative Action plans must be updated annually and retained for 2 years. Covered employers with 150 or more employees must retain records for 2 years. Covered employers with fewer that 150 employees or government contracts that are less that $150,000 must maintain records for 1 year.
After An Action Is Started: If an investigation by the OFCCP has commenced or a charge of discrimination or related lawsuit has been filed against the university, all relevant records must be kept until final disposition of the matter.
Fair Labor Standards Act (FLSA)
Requirements: Employee information including name, address, occupation, birth date (if under the age of 19), and gender; complete payroll records including hours worked, overtime, and wage deductions; certificates; written training agreements; sales and purchase records; and certificates of age for each employee under the age of 18.
Retention Period: Three (3) years.
Requirements: Basic employment and earnings records, wage rate tables, actual work completed, additions to/deductions from wages, wage differential payments to employees of the opposite sex/same job, evaluations, job descriptions, and merit or seniority systems.
Retention Period: Two years.
Requirements: Collective bargaining agreements; employee and payroll information; explanation of merit or seniority systems; employee time sheets or cards.
Retention Period: Three years after agreement ends or after records are made, except that explanations of merit or seniority systems and employee time sheets or cards must only be retained for 2 years.
Requirements for Homeworker Regulations (pdf): 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.
Retention Period: Two (2) years.
Family and Medical Leave Act (FMLA)
Requirements: 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 leave; records of any dispute regarding the designation of a leave as FMLA.
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 on computers as long as they are available for transcription or copying.
Retention Period: Three (3) years.
Federal Unemployment Tax Act (FUTA)
Requirements: 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 benefits, and amounts and date of wage payments; copies of employee withholding form (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.
Retention Period: Four (4) years after tax is due or paid.
Freedom of Information Act (FOIA) and Privacy Act
Requirements: 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.
Health Information Privacy (HIPAA)
Requirements: 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 are 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.
Immigration Reform and Control Act (IRCA)
Requirements: Employee Eligibility Verification forms (INS Form I-9) completed and signed by each newly hired employee and the employer. It is recommended that employers keep copies of the supporting documentation presented by each employee as proof of eligibility to work in the United States. Since the Department of Labor 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.
Retention Period: Three (3) years after the worker is hired or one year after termination, whichever is later.
Internal Revenue Service Regulations
Requirements: Basic employee data including name, address, social security number, and birth date; records showing pay periods, daily and weekly hours, overtime, 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.
Retention Period: Four years after payment, deduction of taxes, or due date of returns. Retention can be extended by the IRS as long as records are material to a tax filing; therefore, keeping records indefinitely is safest.
Occupational Safety and Health Act (OSHA)
Requirements: The following documents must be maintained by employers subject to OSHA:
- Form 300: Log of work-related injuries and illness
- Form 301: Injury and illness incident report
- Form 300A: Annual injuries and illness report
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.
Retention Period: Five (5) years. The old OSHA 200 and 201 forms must be retained for 5 years following the year to which they relate.
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 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.
Requirements: Records of any medical examination required by OSHA or records related to employee exposure to toxic or hazardous agents.
Retention Period: Thirty (30) years after termination of employment.
Personal Responsibility and Work Opportunity Reconciliation Act of 1996
Requirements: 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.
Rehabilitation Act
Requirements: 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.
Retention Period: Two (2) years for contractors with more than 150 employees or a government contract of $150,000 or more.
After An Action Has Started: Once a discrimination action is begun the employer must retain all records regarding the employee until final disposition of the action.
Social Security Act (FICA)
Requirements: 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; and employer filing records.
Retention Period: Four (4) years.
Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA)
Applies to federal contractors and subcontractors.
Requirements: Creation and maintenance of an affirmative action plan for covered veterans who, while serving on active duty in the Armed Forces, participated in a U.S. military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985, and recently separated veterans. Documentation is required, detailing: (1) the number of employees in the contractor's workforce, by job category and hiring location, who covered veterans; (2) the number of covered veterans hired during the previous 12 months; and (3) this information must be reported annually and must also be recorded on the Vets-100 Report.
Retention Period: Employers with fewer than 150 employees or a government contract of less than $150,000 must retain records for 1 year. Employers with 150 employees or more and a government contract of at least $150,000 must retain records for 2 years.
Walsh-Healey Public Contracts Act
Applies to federal contractors and subcontractors.
Requirements: 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.
Retention Period: Three (3) years from date of entry.
Requirements: 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.
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.
Retention Period: Three years.
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure have been revised, effective December 1, 2006, to 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 new federal rules apply to any company that may find itself in federal court for any type of lawsuit.
Requirements: Examples of ESI include e-mails sent to or from desktop computers, laptop computers or BlackBerrys; 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 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.
Retention Period: The new 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." However, companies have been penalized for delays or the failure to timely produce ESI.