HR Record Retention Requirements: How Long Do You Have to Keep Employment Records?
Record retention is important, and the law specifies how long many HR-related records must be kept.
Do you know how long Title VII of the Civil Rights Act of 1964 requires your company to retain relevant records?
How about the ADA? ADEA? FMLA? FLSA? I-9 Immigration Form?
What’s your best guess? Do you think they all prescribe the same time periods for record retention?
Or do you think the record retention requirements depend on the particular law and type of record involved?
The answer is that the various federal laws differ from one another somewhat. And state laws that may impact record retention requirements should also be checked in formulating your HR record retention policies.
Moreover, electronic storage of HR data and the potential relevance of such data to agency investigations and litigation muddy the waters considerably, requiring examination of factors other than the clear time limits set forth in specific employment laws.
Table of Contents
- Record Retention Under Title VII , ADA, and GINA
- ADEA Record Retention
- FMLA Recordkeeping and Retention Requirements
- Fair Labor Standards Act (Minimum Wage and Overtime) Record Retention Requirements
- OSHA Record Retention Requirements
- IRS Record Retention Requirements Related to Payrolls and Employment Taxes
- I-9 Employment Eligibility Forms
Record Retention Under Title VII , ADA, and GINA
EEOC regulations address recordkeeping and retention for purposes of Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act (ADA), and Genetic Information Nondiscrimination Act (GINA).
has not adopted any requirement, generally applicable to employers, that records be made or kept. It reserves the right to impose recordkeeping requirements upon individual employers or groups of employers . . . whenever . . . such records (a) are necessary for the effective operation of the EEO–1 reporting system or of any special or supplemental reporting system . . . ; or (b) are further required to accomplish the purposes of title VII, the ADA, or GINA.
EEOC regulations address maintaining records of the racial and ethic identities of employees, requiring this of all employers with 100 or more employees through mandatory filing of an annual Employer Information Report (EEO-1):
Employers may acquire the information necessary for completion of . . . Report EEO–1 either by visual surveys of the work force, or . . . by the maintenance of post-employment records as to the identity of employees where . . . permitted by State law. In the latter case, however, the Commission recommends the maintenance of a permanent record as to the racial or ethnic identity of an individual . . . only where the employer keeps such records separately from the employee’s basic personnel form or other records available to those responsible for personnel decisions.
Otherwise, the EEOC approach is that while (unlike some other agencies) it generally it has no specific recordkeeping requirements, most employers make plenty of relevant records anyhow, so its regulatory focus is on retention of those employment records the employer does make. It has a one-year retention rule for:
- Personnel or employment records including “requests for reasonable accommodation, application forms submitted by applicants and other 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” (retained for one year from the date of making the record or taking the personnel action, whichever is later).
- “In the case of involuntary termination of an employee, the personnel records of the individual terminated [not just those related directly to the termination] shall be kept for . . . one year from the date of termination.”
Then, the EEOC introduces a catch-all rule, which is extremely open-ended and should make anyone uncomfortable if they are reading this post looking for a clean and simple rule to follow:
Where a charge of discrimination has been filed, or an action brought by the Commission or the Attorney General, against an employer under Title VII or the ADA, the . . . employer shall preserve all personnel records relevant to the charge or action until final disposition . . . .
The term “personnel records relevant to the charge,” for example, would include . . . records relating to the aggrieved person and to all other employees holding positions similar to that held or sought by the aggrieved person and application forms or test papers completed by an unsuccessful applicant and by all other candidates for the same position as that for which the aggrieved person applied and was rejected.
The date of final disposition . . . means the date of expiration of the statutory period within which the aggrieved person may bring an action in a U.S. District Court or, where an action is brought against an employer . . . the date on which such litigation is terminated.
This is a tough rule for many reasons.
- It refers to records relating to classes of similar employees, and the degree of similarity is always a matter of potential dispute. Therefore, identifying which records must be preserved beyond a normally scheduled retention period may be a challenge.
- In a larger organization, there is likely to be sufficient frequency of charges and litigation that record retention governed by this less clear-cut rule can become the rule, not the exception, creating havoc with efforts to schedule regular destruction of older documents.
- There are practical reasons for maintaining employment records for long periods; perhaps retaining some data indefinitely in electronic form now that digital memory is so inexpensive. Older information can be just as useful in defending claims as it may be incriminating. For example, if a discrimination claimant says he was the only one ever fired for a particular reason, and this is true within the last two years, but three to five years ago there were some terminations for the same reason, all or most not of the same race, etc. as the claimant, for defending the employer I’d sure want that evidence!
- Under the Lily Ledbetter Act, the statute of limitations for an equal-pay lawsuit begins when the employer makes the initial allegedly discriminatory wage decision, so claims of such discrimination can involve facts going way back in time.
ADEA Record Retention
These regulations require maintaining and keeping for three years the following information on all employees:
- Date of birth
- Rate of pay
- Compensation earned each week
Note: date of birth is essential in responding to charges of age discrimination, but ignorance of this fact by decision makers can be helpful in avoiding discrimination and sometimes even allows a defense of ignorance (how could the decision have been because of age if age was unknown?). So I would recommend limiting access to this information, as with health records.
The ADEA regulations also provide that the following records should be retained for one year from the date of the applicable personnel action, if the employer makes, obtains, or uses them:
- Job applications, resumes, or any other form of employment inquiry when submitted in response to an advertisement or notice of job openings, including records pertaining to the failure or refusal to hire any individual
- Records relating to promotion, demotion, transfer, selection for training, layoff, recall, or discharge of any employee
- Job orders submitted by the employer to an employment agency or labor organization for recruitment of personnel for job openings
- Test papers completed by applicants or candidates which disclose the results of any employer-administered aptitude or other employment test considered by the employer in connection with any personnel action
- Results of any physical examination where such examination is considered by the employer in connection with any personnel action
There are two more, catch-all type rules under the ADEA:
- Any employee benefit plans such as pension and insurance plans, as well as copies of any seniority systems and merit systems which are in writing must be retained while in effect, and for at least 1 year after termination. If not in writing, a memorandum of the terms of such plan or system and how it has been communicated to the affected employees, together with any changes or revisions thereto, shall be kept on file for the same period.
- When an enforcement action is commenced regarding a particular applicant or employee, the employer must retain any relevant record until final disposition.
FMLA Recordkeeping and Retention Requirements
Department of Labor regulations under the Family and Medical Leave Act (FMLA) requires that covered employers who have eligible employees maintain the following records for three years (with some exceptions):
- Basic payroll and identifying employee data, including name, address, and occupation; rate or basis of pay and terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; and total compensation paid.
- Dates FMLA leave is taken by FMLA eligible employees.
- If FMLA leave is taken by eligible employees in increments of less than one full day, the hours of the leave.
- Copies of employee notices of leave furnished by employees to the employer under FMLA, if in writing, and copies of all written notices given to employees as required under FMLA.
- Any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves.
Fair Labor Standards Act (Minimum Wage and Overtime) Record Retention Requirements
For nonexempt hourly employees, employers must keep “payroll or other records containing the following information and data with respect to each employee to whom section 6 [minimum wage] or both sections 6 and 7(a) [overtime] of the Act apply”:
- Name and any identifying symbol or number used in place of name on any time, work, or payroll records.
- Home address.
- Date of birth, if under 19.
- Sex and occupation.
- Time of day and day of week on which employee’s workweek begins. If all workers have workweek beginning at same time on same day, a single notation for the whole workforce or establishment will do.
- Regular hourly rate of pay for any workweek in which overtime compensation is due; basis of pay (amount paid on per hour, per day, per week, per piece, commission, or other basis); and amount and nature of each payment excluded from “regular rate” pursuant to section 7(e).
- Hours worked each workday and total hours worked each workweek.
- Total daily or weekly straight-time earnings or wages due for hours worked during the workday or workweek, exclusive of overtime compensation.
- Total premium pay for overtime.
- Total additions to or deductions from wages paid each pay period.
- Total wages paid each pay period.
- Date of payment and the pay period covered by payment.
These items should be standard under any payroll or HR recordkeeping system, whether external (e.g., outsourced payroll) or internal, but it’s a good idea to verify compliance.
These FLSA regulations also spell out record retention periods as follows:
- All payroll or other records containing the employee information and data required under 1-12, above.
- Certain plans, trusts, individual contracts or collective bargaining agreements.
- Written agreements or memoranda summarizing the terms of certain oral agreements or understandings.
- Certificates and notices listed or named in any applicable section of the FLSA regulations.
- Sales and purchase records reflecting total dollar volume of sales or business, and total volume of goods purchased or received.
- Basic employment and earnings records, including time and earning cards or sheets recording daily starting and stopping time of individual employees, or of separate work forces, or amounts of work accomplished by individual employees on a daily, weekly, or pay period basis (for example, units produced) when those amounts determine earnings or wages in whole or in part.
- Wage rate tables that provide piece rates or other rates used in computing straight-time earnings, wages, or salary, or overtime pay computation.
- Order, shipping, and billing records, including all customer orders or invoices received, incoming or outgoing shipping or delivery records, bills of lading, and billings to customers (not including individual sales slips, cash register tapes or the like) retained or made in the usual course of business.
- Records of additions to or deductions from wages paid:
OSHA Record Retention Requirements
OSHA regulations describe in great detail the work-related injuries and illnesses an employer must enter into OSHA records. There are specific OSHA forms employers must use to record work-related fatalities, injuries, and illnesses.
Employers should stay on top of OSHA recordkeeping, as the regulations provide that “[w]hen an authorized government representative asks for the records . . . , you must provide copies . . . within four (4) business hours.”
- Keeping “the OSHA 300 Log [of work-related illnesses and injuries], the privacy case list (if one exists), the annual summary, and the OSHA 301 Incident Report forms for five (5) years following the end of the calendar year that these records cover.”
- Updating the OSHA 300 Log during the five-year storage period “to include newly discovered recordable injuries or illnesses and to show any changes that have occurred in the classification of previously recorded injuries and illnesses. If the description or outcome of a case changes, you must remove or line out the original entry and enter the new information.”
The OSHA Recordkeeping Handbook indicates there are many other OSHA recordkeeping requirements that may apply to specific employers and industries:
The information included here deals only with the requirements . . . for recording and reporting occupational injuries and illnesses. Some employers may be subject to additional recordkeeping and reporting requirements . . . .
Many specific OSHA standards and regulations have additional requirements for the maintenance and retention of records for medical surveillance, exposure monitoring, inspections, and other activities and incidents relevant to occupational safety and health, and for the reporting of certain information to employees and to OSHA.
For information on these requirements, which are not covered in this publication, employers should refer directly to the OSHA standards or regulations, consult OSHA’s website for additional information, or contact their OSHA regional office or participating State agency.
IRS Record Retention Requirements Related to Payrolls and Employment Taxes
- Employer identification number
- Copies of returns filed
- Names, addresses, social security numbers, and occupations of employees and recipients
- Dates of employment
- Copies of employees’ and recipients’ income tax withholding allowance certificates (Forms W-4, W-4P, W-4S, and W-4V)
- Dates and amounts of tax deposits
- Amounts and dates of all wage, annuity, and pension payments
- Records of fringe benefits provided, including substantiation
- Amounts of tips reported and records of allocated tips
- Fair market value of in-kind wages paid
- Periods for which employees and recipients were paid while absent due to sickness or injury and the amount and weekly rate of payments employer or third-party payers made to them
- Any employee copies of Form W-2 that were returned as undeliverable
I-9 Employment Eligibility Forms
retain a paper, microfiche, microfilm, or electronic version of the [I-9] form and make it available for inspection . . . during a period beginning on the date of the hiring, recruiting, or referral of the individual and ending—
(A) in the case of the recruiting or referral for a fee (without hiring) of an individual, three years after the date of the recruiting or referral, and
(B) in the case of the hiring of an individual—
(i) three years after the date of such hiring, or
(ii) one year after the date the individual’s employment is terminated,
whichever is later.
Establishing policies and parameters for creation, retention, and ultimate destruction of human resources records is a difficult proposition, with the involvement of so many government agencies and their regulations.
Modern electronic recordkeeping makes the challenges easier by diminishing the urgency of destruction, since the expense and space requirements of storage are so much less than with paper. There are potentially very serious risks if documents needed in litigation are found to have been destroyed in a situation in which the law required a “legal hold” notwithstanding routine destruction policies. This is a topic warranting careful consideration by persons involved in the legal, human resources,m and information technology functions of a business.