Recordkeeping: Strong Defense Against Employee Complaints and Inquiring Regulators

1. Recordkeeping: Strong Defense Against Employee Complaints and Inquiring Regulators An HRWebAdvisor Webinar By Steven A. Meyerowitz, Esq.

2. Our webinars are designed to be accurate and authoritative, but we do not provide legal, accounting, or similar professional services. Client remains solely responsible for compliance with all applicable laws, regulations and accounting standards. If legal, accounting other expert advice is desired, Client should retain the services of an appropriate professional.

3. The Fair Labor Standards Act What does the Fair Labor Standards Act (“FLSA”) do? What does the FLSA require? What about exempt employees? What should the records include?

4. The Fair Labor Standards ActRecordkeeping for Non-Exempt Employees • Employee’s full name, as used for social security purposes, and on the same record, the employee’s identifying symbol or number if such is used in place of name on any time, work, or payroll records; • Home address, including zip code; • Social security number; • Date of birth, if under 19; • Gender; • Position (occupation); • Time and day on which each work week begins; • Regular hourly rate of pay, basis for payment (salary, hourly, commission) and exclusions; • Hours worked each workday and total hours worked each workweek; • Total daily or weekly straight time earnings or wages; • Total overtime compensation for each week; • Total additions to or deductions from wages paid in each pay period; • Total wages paid each pay period; and • Date of payment of wages and pay period covered by payment.

5. The Fair Labor Standards ActRecordkeeping for Exempt Employees • Personal information, including name, home address, occupation, gender, date of birth for workers under age 19 and the person’s social security number; • Time of day and day of week when the employee’s workweek begins; • Total wages paid each pay period; and • Date of payment and the pay period covered by each payment.

6. The Fair Labor Standards Act • How Long Must The Records Be Preserved? • Reporting. • Timekeeping.

7. Equal Employment Opportunity Commission (EEOC) Regulations • What does the U.S. Equal Employment Opportunity Commission do? • What do the regulations require?

8. The Age Discrimination in Employment Act • What does the Age Discrimination in Employment Act (ADEA) prohibit? • Payroll records. • Employee benefit plans, written seniority or merit systems.

9. The Age Discrimination in Employment Act • When a Charge has Been Filed the Rules Change

10. Employer Information Report EEO-1 • What is the EEO-1 Report? • Who must file? • What information should be maintained?

11. The Americans with Disabilities Act (ADA) • What does the ADA govern? • What employers are covered by the ADA? • The special rule for medical records. • And, the timeframe.

12. The Americans with Disabilities Act (ADA) • In the case of involuntary termination of an employee, the personnel records of the individual terminated shall be kept for a period of one year from the date of termination. • Personnel or employment records include, but are not limited to: • requests for reasonable accommodation; • application forms submitted by applicants; • records having to do with hiring, promotion, demotion, transfer, lay-off or termination; • rates of pay or other terms of compensation; and • selection for training or apprenticeship.

13. The Americans with Disabilities Act (ADA) • Where a charge of discrimination has been filed, or an action brought against an employer under Title VII or the ADA, the respondent employer shall preserve all personnel records relevant to the charge or action until final disposition of the charge or the action.

14. Genetic Information Nondiscrimination Act of 2008 (GINA) • What’s GINA? • Separate personnel files.

15. Lilly Ledbetter Fair Pay Act of 2009 • The Lilly Ledbetter Fair Pay Act of 2009. • Records documenting pay and pay decisions.

16. Family Medical Leave Act (FMLA) • The FMLA. • The obligations of covered employers with eligible employees. • Records to be maintained.

17. Employee Retirement Income Security Program (ERISA) • ERISA. • Retention of records.

18. Consolidated Omnibus Budget Reconciliation Act (COBRA) • COBRA • COBRA strikes! • Records that must be kept.

19. HIPAA • HIPAA provides rights and protections for participants and beneficiaries in group health plans. • Employers subject to HIPAA privacy rules. • Separate medical information from other personnel records.

20. Occupational Safety and Health Administration (OSHA) • OSHA’s intended purpose. • The reporting requirement. • The OSHA 300 Log, the privacy case list, the annual summary, and OSHA 301 Incident Report forms. • Get ready: For employees exposed to toxic or hazardous materials their records must be kept for the duration of employment... …plus 30 years.

21. Immigration Reform and Control Act • The Immigration Reform and Control Act of 1986 (IRCA). • Complying with the law. • Form I-9.

22. Internal Revenue Service (IRS) • Employment tax records. • How long? • What should they include?

23. State Laws • States have recordkeeping rules, too? • New York’s Wage Theft Prevention Act.

24. Summary • This presentation covered basic recordkeeping policies under the FLSA, EEOC, ADEA, ADA, GINA, the FMLA, IRCA, and the IRS. • In a nutshell, the basic recordkeeping time frames are as follows:

25. FLSA • Employers are required to preserve for at least three years payroll records, collective bargaining agreements, and sales and purchase records. Records on which wage computations are based should be retained for two years.

26. EEOC • EEOC Regulations require that employers keep all personnel or employment records for one year. • If an employee is involuntarily terminated, his/her personnel records must be retained for one year from the date of termination.

27. ADEA • Employers must also keep all payroll records for three years. • Additionally, employers must keep on file any employee benefit plan (such as pension and insurance plans) and any written seniority or merit system for the full period the plan or system is in effect and for at least one year after its termination.

28. ADA • One year from the date of the making of the record or the personnel action involved, whichever occurs later. • In the case of involuntary termination of an employee, the personnel records of the individual terminated shall be kept for a period of one year from the date of termination.

29. FMLA • Employers must keep the records specified by these regulations for no less than three years.

30. Lilly Ledbetter • Employers should maintain all records documenting pay and pay decisions for all employees for years after the termination of the employment relationship, and, because suits may be filed after pension benefits begin, some commentators advise these records should be maintained indefinitely to defend against discrimination claims.

31. ERISA • Records should be maintained for a period of not less than six years after the filing date of the documents, and some commentators advise employers to retain this information for 8 years or longer.

32. COBRA • It is advisable to follow the ERISA guidance, and keep these records for at least 6 years after a COBRA notice was given.

33. OSHA • The annual summary, and the OSHA 301 Incident Report forms must be maintained for a minimum of five years following the end of the calendar year that these records cover. • For employees exposed to toxic or hazardous materials their records must be kept for the duration of employment plus 30 years.

34. Immigration • Form I-9 must be kept by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later.

35. IRS • Records must be kept at least four years after filing the 4th quarter for the year.

36. Keeping Records in General • It is advisable to audit your recordkeeping policies and your employee records annually to keep them in compliance with the rules and regulations. Your recordkeeping policy should be customized to reflect the requirements of your particular industry and workforce. • Most personnel records can be kept in paper, or electronic form. It is essential to keep these records secure. • It is advisable — and in the case of medical records, necessary — to maintain several employment record systems. At a minimum have separate files for: • medical and confidential protected information, like drug test results, genetic information, protected class information, FMLA claims; ADA info, etc.; - performance evaluations; - payroll records; and - hiring records.

37. For General Personnel Files Consider the Following: • Do you have a record keeping policy in place? • Are the personnel files secured in a locked cabinet or are the right electronic safeguards in place? • Is your document system well organized? • Does each file have a checklist so the basic contents are known at a glance? • Are all documents that contain medical information, or information related to an employees protected class status, and other confidential information, like social security numbers kept separate from general personnel files?

38. For Medical and Other Confidential Files Consider the Following: • Are they separate from all other files? • Are they secured in a locked cabinet? • If they are kept electronically, are the proper electronic safeguards in place? • Who has access to these files? Is it limited to those with a need to know only? • Are your employee drug test records kept in these files, with limited access?

39. Other files: • Job applications and hiring records for non-hired candidates should be kept separate from the persons hired. • The files for hired candidates can be maintained in their general personnel or confidential folder. • Immigration and EEOC files should not be kept in personnel files, and access to these forms should be restricted. • Access to payroll files should be restricted.

40. Conclusion Thank you for joining us! ?? ?? ?? ??