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I Have to Keep This How Long?

I Have to Keep This How Long?. Penny Miller, SPHR, CEBS Penny@VentureHRO.com 940-867-9761. Remember. Penny is not a lawyer!. Record Retention. Compliance Risk Management. What Effects Retention?. Size of employer Statutes/regulations (federal/state) Federal contractor status

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I Have to Keep This How Long?

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  1. I Have to Keep This How Long? Penny Miller, SPHR, CEBS Penny@VentureHRO.com 940-867-9761

  2. Remember Penny is not a lawyer!

  3. Record Retention • Compliance • Risk Management

  4. What Effects Retention? • Size of employer • Statutes/regulations (federal/state) • Federal contractor status • Risk assessment

  5. Organization of Files • Employee record (personnel file) • Medical (health) file • Confidential • Benefits • Payroll

  6. Record Retention Policy • Have one • Follow it • But use common sense • Good faith • Possible workplace investigations, lawsuits, audits, etc.

  7. I-9s • 3 years from date of hire OR • 1 year from termination Whichever is longer

  8. Personnel File • Civil Rights Act: 1 year from action (EEO-1: 1year) • Age Discrimination in Employment Act: 1 year (3 years for payroll) • Americans with Disabilities Act: 1 year from action • In cases where charge or lawsuit filed: until disposition • State discrimination: 1 year

  9. Uniform Sentencing Guidelines • Adverse Action • 2 years post remedy

  10. Polygraph Protection Act • Includes test results and reasons for testing • 3 years

  11. Pay Records • Includes: basic employee demographic records (such as name, address, social security number, gender, date of birth, occupation and job classification) along with records of total compensation, tax forms, records of hours worked (straight time and overtime), and payments to annuity, pension, accident, health, or other fringe benefit plans, as well as all wages subject to withholding and the actual taxes withheld from wages.

  12. Payroll Records • Fair Labor Standards Act (FLSA): 3 years • Federal Insurance Contribution Act (FICA), Federal Unemployment Tax Act (FUTA)/IRS regulations: 4 years • Davis-Bacon Act, the Service Contract Act and the Walsh-Healy Public Contracts Act: 3 years • Texas Unemployment: 4 years • Equal Pay Act: 3 years • Lily Ledbetter: ?

  13. Benefits Information • Includes: summary plan descriptions, annual reports and reports of plan termination • Employee Retirement Income Security Act (ERISA) • 6 years • COBRA • Records relating to benefits due kept as long as relevant (ex. Defined benefit plans)

  14. Family Medical Leave Act (FMLA) • Includes: all pay and employment information plus: • Dates of leave taken by eligible employees. Leave must be designated as FMLA leave. • For intermittent leave taken, the hours of leave. • Copies of employee notices and documents describing employee benefits or policies and practices regarding paid and unpaid leave. • Records of premium payments of employee benefits. • Records of any dispute regarding the designation of leave. • 3 years

  15. Affirmative Action Plans • EO 11246 • Rehab Act of 1973 • Vietnam Era Veterans Readjustment Act • Current year • Previous year (for EO 11246 only) • Include documentation of good faith efforts • Employee records: 2 years; 1 year if < 150 employees or contract < $150,000

  16. Safety • Includes: documentation relating to work-related accidents and OSHA logs and summaries • Occupational Health and Safety Act (OSHA) • 5 years • Information related to exposure to hazardous chemical or bloodborne pathogens: 30 years from termination

  17. Fair and Accurate Credit Reporting Act (FACTA) • Shred credit reports

  18. Special Cases • USERRA • Union agreements: permanent • No specific requirement: 3 years

  19. Clearly, there are many different recordkeeping requirements for different situations. Employers can rightly wonder whether they can be in good shape under one requirement, but out of compliance under another law. For that reason, most employment law attorneys advise their clients to keep all employment-related records for at least seven years following the date of an employee's work separation. Doing that will exhaust all possible statutes of limitation for various common law causes of action in Texas, and will keep an employer safe under federal and Texas statutes as well. The only exception is fairly easy to remember: if any employees are exposed to hazardous materials, keep the documentation relating to the exposure for at least thirty (30) years following the employee's work separation. Texas Workforce Commission

  20. Questions?

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