Recordkeeping and Posting Requirements

Friday, August 22, 2008
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:

A. 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. Records retained for three years.

B. 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. Records retained for one year.

C. Employee benefit plans, including seniority or merit systems. Records retained for the period the plan is in effect plus one year after termination.

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

Employee Polygraph Protection Act. The following documents must be preserved in conjunction with the Polygraph Protection Act:

A. 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 three years from the date a test is conducted.

B. Copies of any written materials pertaining to the polygraph examination. Records retained for three years from the date a test is conducted.

Employee Retirement Income Security Act (ERISA). Under ERISA, the following records must be maintained:

A. 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.

B. Records establishing benefits which are due or may become due to employee participants. Records retained as long as the material remains relevant.

C. Summary plans and Reports on Benefit Plans. Records retained for six years.

Equal Pay Act of 1963. Payroll records which must be maintained under the Equal Pay Act of 1963 relate to enforcement actions. Records retained for three years.

Fair Labor Standards Act. The Fair Labor Standards Act specifies that a number of records be maintained pertaining to compensation paid to employees, including the following:

A. 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 hour administrator. Records retained for three years.

B. 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.

C. Child labor age certificates. Records retained until termination plus three years.
D. Training agreements. Records retained 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. OSHA requires the maintenance of the following records pertaining to employee health and injury issues:

A. 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.

B. Supplemental records which contain additional information concerning illnesses and injuries must be maintained through OSHA Form 101 or an acceptable equivalent.

C. Records of medical examinations required by law are required to be maintained for at least 30 years after employee terminates as a general rule.

D. Medical records which substantiate exposure to any toxic substances are required to be maintained for 30 years after employee terminates as a general rule.

Title VII of the Civil Rights Act of 1964. Records to be maintained under Title VII of the Civil Rights Act of 1964 include the following:

A. Personnel documents (including application forms, hiring records, termination documents, and compensation rates). Records to be retained for at least one year from the date of the personnel action or from the date the record was made, whichever is later.

B. Records concerning charges of discrimination. Records must be maintained until the civil rights action is completed.
C. 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.

D. 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. The FMLA requires that employers preserve those records which are required in conjunction with the Fair Labor Standards Act and its accompanying regulations:

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 of a charge follow FLSA requirements. Records to be retained for at least one year.

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 annually with the EEOC. Records to be retained for at least one year.

Federal Contractors - OFCCP Regulations. OFCCP regulations provide that federal contractors must maintain any personnel or employment record for two years from the date of either the record or the personnel action to which the record relates, whichever is later. Contractors with fewer than 150 employees or no government contract in excess of $150,000 must keep records for one year. However, when a contractor receives notice of a complaint, a compliance evaluation, or enforcement proceedings, all documents relevant to the action must be preserved until the action concludes.

In addition, the regulations specifically state that contractors must maintain both their current and prior year's affirmative action plans, as well as documentation of good faith efforts. Finally, the regulations permit the OFCCP to presume that any records not maintained were unfavorable to the contractor.

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 law. The posting requirements typically carry with them civil penalties which may be imposed if an employer fails to adequately apprise its employees of their rights under federal law. While the penalties are ordinarily not substantial, any employer truly interested in complying with recordkeeping requirements will see to it that the company has posted necessary documentary information to apprise company employees of their rights and privileges under both federal and state law. Among the required postings are the following:

1. Discrimination laws (including the Age Discrimination and Employment Act, Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and, for federal contractors, the Rehabilitation Act of 1973, the Vietnam Era Veterans Readjustment Assistance Act and Executive Order 11246) ó each of the discrimination statutes requires a posting concerning statutory protections be in a prominent and accessible place conspicuous to employees and job applicants. There is a consolidated EEO poster which addresses the discrimination provisions and which is commonly used by many employers to "cover all of the bases" concerning the prominent discrimination statutes.

2. 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. Occupational Safety and Health Act 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. As an example, where a state has enacted a wage and hour law which is more stringent than federal law, state posting requirements come into play. In each state in which an employer does business, contact should be made with the appropriate government employment agencies or your attorney to ensure that you comply with individual state recordkeeping and posting requirements as required.

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