Recordkeeping and Posting Requirements

Assume an employer knows the rules of law which apply to the workplace. Assume also that the employer works diligently at applying the rules appropriately. Has the employer satisfied the government? Not yet. Our federal and state governments also demand that an employer be able to prove compliance with those laws. As such, federal and state recordkeeping and posting requirements must be met. In order to satisfy government regulators that the employer has, in fact, complied with the letter of the law and has provided employees with notice of their rights, certain employment records must be kept and certain employment-related postings must be made available in the workplace. This chapter addresses these requirements.

Recordkeeping requirements. There are a substantial number of pieces of federal legislation which demand that an employer maintain certain employment records in order to substantiate compliance with the law. A detailed analysis of the recordkeeping requirements of each of the federal acts is beyond the scope of this book. Nonetheless, even a quick listing of the more prevalent federal employment statutes which have recordkeeping requirements can illustrate the magnitude of an employer's recordkeeping dilemma. Among the most visible employment statutes which require that certain types of records be kept are the following:

1. Employee Retirement Income Security Act

2. Equal Pay Act

3. Fair Labor Standards Act

4. Executive Order 11246 on Equal Employment Opportunity (applies to federal contractors)

5. Age Discrimination in Employment Act

6. Employee Polygraph Protection Act

7. Davis-Bacon Act

8. Immigration Reform and Control Act

9. National Labor Relations Act

10. Internal Revenue Code

11. Landrum-Griffin Act

12. Occupational Safety and Health Act

13. Title VII of the Civil Rights Act of 1964

14. Vietnam Veterans Readjustment Act

15. Federal Rehabilitation Act

16. Walsh-Healey Public Contracts Act

17. Americans with Disabilities Act

18. Family and Medical Leave Act

Each of these statutes demands some recordkeeping on the part of employers who are subject to the statutory provisions. The following list recites the record retention requirements for some of these major employment statutes. Should an employer have questions about recordkeeping requirements which are not addressed below, please consult with qualified legal counsel or the appropriate government agency.

Age Discrimination in Employment Act.  The ADEA requires that the following records be maintained:

1. Payroll or other records setting forth an individual’s name, address, date of birth, rate of pay, level of compensation earned per week and occupation:  Three year retention period

2. Employment records, including applications for current or temporary positions and records pertaining to refusal to hire.  Documents pertaining to promotion, demotion, discharge, and layoff.  Testing papers related to aptitude or other employment tests.  Physical examination results. Job advertisements and postings:  One year retention period

3. Employee benefit plans, including seniority or merit systems:  Records retained for the life of the plan plus one year after termination

4. Personnel records related to an enforcement action:  Records retained until disposition of the charge.

Employee Polygraph Protection Act

1. Copy of statements provided to employees concerning an activity under investigation.  Records pertaining to investigation of criminal conduct or regulatory violations pertaining to controlled substances.  Copy of notice provided by the polygraph examiner to persons to be examined:  Records retained for 3 years from the date the test is conducted.
2. Copies of any written materials pertaining to the polygraph examination: Records retained for 3 years from the date the test is conducted.

Employee Retirement Income Security Act (ERISA) 

1. Records providing foundational material for all required reports, plan descriptions, or other information necessary to substantiate the substance of plans or reports, including worksheets and other applicable information: Records retained as long as the material remains relevant.
2. Records establishing benefits which are due or may become due to employee participants: Records retained as long as the material remains relevant plus one year.
3. Summary plans and Reports on Benefit Plans: Records retained for six years.

Equal Pay Act:  Payroll records related to enforcement actions must be retained for three years.

Fair Labor Standards Act

1. Necessary payroll records which reflect critical employee compensation information, including name, address, rate of compensation, etc., as well as any collective bargaining contracts, payroll materials or other certificates necessary for compliance with regulations promulgated by the wage and hour administrator: Records retained for three years
2. In addition to the necessary basic employment and earnings records, supplementary records, including wage rate tables, work time schedules, billing records and any other documents reflecting moneys paid or deducted:  Records retained for two years
3. Child labor age certificates: Records retained until termination of employee plus three years
4. Training agreements: Records maintained for the period of training made available by the employer

Immigration Reform and Control Act.  The critical record which must be maintained by an employer under the IRCA is the I-9 Form which verifies employment eligibility.  The I-9 must be maintained for at least three years after the employee is hired or, if the employee terminates, for one year, whichever time period is greater.

 Occupational Safety and Health Act

1. Log and summary of occupational injuries and illnesses which details information concerning illnesses and injuries.  OSHA Form 200 is the form most commonly used for the log, although an accurate substitute will suffice.  The log must be maintained for a period of at least five years after the year in question has lapsed.
2. Supplemental records which contain additional information concerning illnesses and injuries must be maintained through OSHA Form 101 or an acceptable equivalent.  Recommended five year retention period
3. Records of medical examinations required by law are required to be maintained for at least 30 years after employee terminates as a general rule.
4. Medical records which substantiate exposure to any toxic substances are required to be maintained for 30 years as a general rule.

Title VII of the Civil Rights Act of 1964

1. Personnel documents (including application forms, hiring records, termination documents, and compensation rates).  These documents should be retained at least one year from the date of the personnel action or from the date the record was made, whichever is later.
2. Records concerning charges of discrimination.  Records must be maintained until the Civil Rights action is completed.
3. Records concerning employer apprenticeship programs.  Records should be retained two years from the date of application or the period of the applicant’s apprenticeship, whichever is greater.
4. EEO-1 Report for employers with 100 or more employees.  Records should be retained for the year the report is the most current document reflecting employee composition.

Family and Medical Leave Act.  Employers must maintain records relating to compliance with the FMLA.  Basic payroll and employee data including name, address of employee, compensation rate, deductions from compensation, dates of FMLA leave, documents describing the employer’s policies and practices concerning paid and unpaid leaves, and records of any disputes with employees concerning FMLA leave.  Records to be retained for three years

Americans with Disabilities Act.  The ADA follows the essential reporting requirements set forth in Title VII of the Civil Rights Act of 1964.  Essential personnel records not subject to retention as a result of an ongoing adjudication follow FLSA rules.

Vietnam Era Veterans’ Readjustment Assistance Act.  The VEVRAA requires records substantiating the number of permanent full-time or part-time Vietnam-era veterans hired on an annual basis.  These numbers are set forth on the VETS-100 form filed with the EEOC.  These records are to be retained for at least one year.

Posting requirements

In addition to maintaining pertinent employment records, many federal employment statutes also require that businesses “post” documents which inform employees of their rights under the law. Note there are federal penalties for not posting.  Among the required postings are the following:

1. Each of the discrimination statutes (ADA, ADEA, Title VII, etc.) requires a posting concerning the statutory protections in a prominent and accessible place to employees and applicants.  There is a consolidated EEO poster used by most employers.

2. The Davis-Bacon Act requires that wage scales to be paid on particular jobs be easily readable and accessible in the work site.

3. The Employee Polygraph Protection Act also requires a posting in a prominent conspicuous place readily observable by applicants and employees.

4. Fair Labor Standards Act requires that it be posted in a sufficient number of places to be readily apparent to employees who report to work.

5. OSHA requires posting again in a conspicuous location which is easily accessible to all employees.  In addition, log summaries detailing totals for injuries and illnesses for each year are required to be posted as annual summaries.

In addition to the most common federal posting requirements, employers should be mindful that each state has their own mandatory recordkeeping and posting provisions.