Employer Record Keeping and Related Advice
Bob Mann, Attorney-at-Law

As an employer, do you realize that various governmental acts and statutes require you to maintain certain records for prescribed periods of time? Failure to do so could lead to criminal penalties and/or civil actions. These records should be maintained in a safe and accessible location at the place(s) of employment. The Wage and Hour Division of the Department of Labor must be able to inspect within 72 hours notice. The records should be maintained in chronological order. They can be stored on microfilm as long as the reproduction is legible. A sampling of various record keeping requirements is as follows:

1. PAYROLL AND OTHER RECORDS:
   
   1. Five (5) Years
      1. Log and summary of occupational injuries and illnesses. Forms 101 and 200.
      2. Payroll and certain personnel records required by the Indiana Department of Employment and Training.
   2. Three (3) Years
      1. Payroll and other documents containing all information required by the Fair Labor Standards Act which covers minimum wage and overtime provisions. This information includes but is not limited to name, address, social security number, time and day of week employee's workweek begins; regular rate of pay, hours worked per day and per week; amount of wages paid; amount of overtime paid, date of payment and pay period covered.
      2. Documentation concerning collective bargaining agreements.
      3. Agreements with respect to overtime, i.e. based on piece, hourly or basic rates or for pay on a work period of 14 days.
      4. Records maintained in an ordinary course of business for the dollar volume of purchases or sales or the total volume of goods purchased or received during a specified period.
      5. The Age Discrimination in Employment Act also requires the retention of payroll records with the same information as specified above. The ADEA applies to employers of 15 or more employees.
      6. Records relating to discrimination charges or until actual charge is resolved, whichever is later.
      7. I-9 Forms - see section C which follows.
   3. Two (2) Years
      1. Any records made in the regular course of business and detailing or related to the payment of wages, wage rates, job evaluation, job descriptions, or other matters relevant to a determination of whether or not a differential in pay is based on sex or some other factor (Equal Pay Act). Basing pay rates on the basis of gender is illegal.
      2. The American With Disability Act (ADA) and Title VII of the Civil Rights Act of 1964 both apply to employers with more than fifteen (15) employees for each working day in each of twenty or more calendar weeks in the current or preceding year. Each Act requires retention of the application or other hiring forms, terms of compensation, promotion, demotion, or other job action documents for one (1) year from the date of the record or job action, whichever is later.
   4. One (1) Year
      1. If record retention is not covered by ADA, Title VII, or ADEA, personnel records relating to resumes; applications; job actions; advertisements or requests for employment; testing documents of employer; any physical exam results, notices concerning job openings or advancement opportunities, training programs, overtime opportunities.
   
   
2. MEDICAL INFORMATION:
   Medical information pertaining to an employee (medical history, condition, disability, workmen compensation records) is confidential, must not be available to anyone except those with a need to know for a legitimate purpose, and must be retained separate from the employee's personnel file.
   
   
3. IMMIGRATION ACT:
   The I-9 Form should be maintained in a separate file from the employee's personnel file because it contains information on age and national origin. The I-9 Form should be secured from the employee only after the initial hiring decisions have been made. The I-9 Form can be discarded one (1) year after termination or three (3) years after the date of hiring, whichever is later.
   
   
4. EMPLOYEE ACCESS TO THEIR PERSONNEL FILE:
   Personnel files, under current law, are the property of the employer. Also, under current law, the employer is not required to provide an employee with his/her file on request. Personnel files should contain relevant employment information and nothing else. It should contain no medical information. Items such as resumes, applications for employment, pay records, job action notes, reviews of performance, attendance sheets should be kept in the file. This file should never be "loaned" out to an employee to review privately. If you allow one employee to review his/her file, you should allow all to do so. Terminated employees should not be provided a review of their file without first checking with your legal counsel.
   
   
5. JOB APPLICATIONS:
   Although some law may require retention of job applications for one or two years, consideration should be given to stating on the application that it will be retained in active job pool application status for only 60 or 90 days. After that point in time the job applicant could not claim discrimination in hiring as his/her application would no longer be in the job pool. Thus, passing over that applicant cannot be based on age, sex, whatever.
   
   
6. OSHA RECORDS
   Employee medical and exposure records must be preserved during the period of employment plus thirty (30) years. Exceptions: This requirement does not include health insurance claim records maintained separately from employer's medical program for which there is no specific time. Also medical records of employee who did not work for more than one (1) year do not need to be retained provided they are given to the employee upon termination. A log and summary of all recordable occupational injuries and illnesses for employers of 10 or more (full-time and part-time are counted) must be maintained for five (5) years. An entry into the log must occur no later than six (6) working days after notice of the illness or injury. The log must be maintained at the workplace. An annual summary of occupational injuries and illnesses must be posted for thirty (30) days for the previous year no later than February 1st. Posting is required, if covered by OSHA, even if there were no qualifying illnesses or injuries. For injuries resulting in death of one or more or hospitalization of three (3) or more employees, the employer must report the same to OSHA within eight (8) hours of the incident.

© 2001

More legal articles

This information does not constitute legal advice. Each actual situation requires unique legal needs, so the information may affect one situation differently than another. Further, the law changes regularly and may vary from one jurisdiction to another. Accordingly, AHMCP disclaims any liability for action taken or not taken based on the material on this web site. Simply stated, the specific legal issues affecting a given situation require specific analysis and specific solutions. The information on this site, by its general nature, cannot provide such analysis and solutions.