What are the federal law-by-law recordkeeping requirements?

The following list outlines the different types of employee information employers are required to retain, how long they must be kept, and the specific federal law that requires it. The list is limited to information that must be maintained about individual employees and that might be kept in individual personnel files, rather than broader information such as benefit plan reports that must be provided by employers.

RECORDKEEPING

Fair Labor Standards Act

Payroll information-retain for three years from the date of the last entry.

All employees:

• Full name of employee and any identifying symbol or number used in place of the employee's name on any time, work or payroll records.

• The employee's home address, including zip code.

• The employee's date of birth, if the employee is under age 19.

• The employee's sex.

• The employee's occupation.

• The time of day and day of the week on which the employee's workweek begins.

• The regular hourly rate of pay for any week when overtime is worked and the amount of overtime compensation that is owed.

• The basis on which wages are paid:

  • Biweekly

  • Monthly

  • Weekly

  • Bimonthly

  • Semimonthly

• The amount and nature of each payment excluded from the employee's regular rate.

• The hours worked by the employee each workday and the total hours worked each workweek.

• The employee's total daily or weekly straight-time earnings or wages.

• The total overtime compensation earned by the employee for each week that is above all straight-time earnings or wages.

• The total amount of additions to or deductions from the wages paid to the employee in each pay period.

• The date of every payroll payment that is made and the pay period covered by the payment.

Note: Certain state law provisions that require an employer to retain wage and hour records for longer than three years will control over these FLSA requirements.

Tipped employees. In addition to the above records, employers of tipped employees must also record:

• A symbol or letter identifying the employee as a tipped employee.

• The actual total hours worked each workday in a tipped position.

• The actual total hours worked in each workday in other than a tipped position.

• The total daily or weekly straight-time earnings segregated according to:

  • Time paid for hours worked each workday in a tipped position.

  • Time paid for hours worked each workday in a nontipped position.

  • Tips received and accounted for or turned over by the employee to the employer in a weekly or monthly amount (may be recorded on IRS Form 4070).

Health care employees with 14-day work periods-retain for two years.

For each employee:

• Time of day and day of week on which the 14-day work period begins.

• Hours worked each workday.

• Total hours worked during the 14-day work period.

• Total straight-time wages paid for hours worked during the 14-day work period.

• Total overtime compensation paid for hours worked in excess of eight in a workday and 80 in a work period.

Employee Retirement Insurance Security Act (ERISA)

ERISA does not provide a specific time period for retention of such records; the records would have to be kept for active employees as well as terminated employees whose prior service would entitle them to benefits or increases in benefits if they should be rehired.

For each employee:

• The employee's age.

• The employee's service record:

  • Has the employee worked at least 1,000 hours?

  • Has the employee incurred a break in service?

  • If yes, how long was the break in service?

• The employee's marital status.

• The employee's pay records (for determining benefit amounts).

Age Discrimination in Employment Act (ADEA)

Payroll records-maintain for three years:

For each employee:

• Name.

• Address.

• Date of birth.

• Occupation.

• Rate of pay.

• Compensation earned each week

Employment records-maintain for one year measured from the date of the personnel action to which the record relates:

• Job applications.

• Resumes and other forms of employment inquiry.

• Records of promotions.

• Records of demotions.

• Records of transfers.

• Selection process for training.

• Selection process for layoffs.

• Selection process for recall.

• Selection process for discharge of any employee.

• Job orders submitted to an employment agency.

• Test papers that disclose the test results.

• Results of job-related physical examinations used in connection with personnel actions.

• Advertisements relating to job openings.

• Application forms & preemployment records.

Title VII of the Civil Rights Act of 1964

Personnel records-retained for one year from the date of making the record or taking the personnel action involved, whichever is later.

• Job applications.

• Records of:

  • Hiring.

  • Promotion.

  • Demotion.

  • Transfer.

  • Layoff.

  • Terminations.

  • Pay rates.

  • Compensation terms.

  • Selection for training or apprenticeship.

Note: Personnel records relevant to a discrimination charge must be retained until final disposition of the charge or action.

Family and Medical Leave Act

Family and medical leave records-retain for three years:

• Basic payroll data.

• Identifying employee data.

• Dates when FMLA leave is take.

• Hours of FMLA leave when taken in increments of less than one day.

• Copies of written employee leave notices.

• Copies of all notices given to employees.

• Documents describing employee benefits or employer policies on paid and unpaid leave.

• Benefit premiums paid.

• Records of disputes over designating leave as FMLA leave.

Immigration Reform and Control Act

Form I-9s must be kept for three years after hiring or the date of recruitment or referral. After an employee is terminated, the form must be kept for one year after termination or three years after the person's employment, whichever is later. I-9s may be stored in paper, microfiche, microfilm or electronic formats, and they may contain electronic signatures.

• Completed I-9 form for each employee.

Social Security

Social Security records-retain for four years from the later of either the tax due date or payment of tax.

For each employee:

• Name.

• Address.

• Social Security number.

• Total amount of each payroll payment.

• Date of each payroll payment.

• Period covered by each payroll payment.

• The amount of each payroll payment that is subject to FICA taxation.

• The amount and date of each employee FICA contribution.

• The reason for any discrepancy between FICA owed and FICA collected.

Occupational Safety and Heath Act (OSHA)

OSHA-maintain for duration of employment plus 30 years, unless another OSHA regulation provides a different retention period.

For each employee:

• Records of all medical examinations required by law.

• Medical records for any employee exposed to potentially toxic substances or harmful physical agents requiring monitoring or measurement.

• However, noise exposure measurement records need be retained for only two years.

Federal Unemployment Tax Act (FUTA)

Unemployment insurance records-retain for four years.

For all employers that pay Federal Unemployment Tax Act (FUTA) tax:

• The total amount of remuneration paid to employees during the calendar year.

• The amount of total remuneration paid during the year that constituted taxable wages under the FUTA.

• The amount of contribution paid to state unemployment insurance funds.

• Any information required to be shown on the annual IRS Form 940, Employer's Annual Federal Unemployment Tax Return.

• The employer's tax liability.

Employee Polygraph Protection Act

Retain for three years from the date each polygraph exam is conducted or requested:

• A copy of the statement that sets forth the specific incident or activity under investigation and the basis for testing the particular employee if an employee is requested to submit to a polygraph examination in connection with an ongoing investigation involving economic loss or injury.

• Records specifically identifying the loss or injury in question and the nature of the employee's access to the person or property that is the subject of the investigation.

• All opinion lists and other records relating to polygraph testing of the employee in question.

• Duration of each test period.

Overall:

• Number of examinations conducted each day.

Davis-Bacon Act

Federal public works contractors and subcontractors must keep for each employee, payroll records showing:

• Name.

• Hours worked.

• Weekly wages earned.

• Deductions from wages.

• Weekly wages paid.

Government Service Contracts Act

For each employee engaged on a contract in excess of $2,500:

• Name and address.

• Work classification(s).

• Rate of wages and fringe benefits paid.

• Total daily and weekly compensation.

• Daily and weekly hours worked.

• Deduction, rebates or refunds from total daily or weekly compensation.

• List of wages and fringe benefits for classes of service employees not included in the minimum-wage attachment to the contract but for which benefits have been determined.

Uniform Guidelines on Employee Selection Procedures

For users of employment tests and selection procedures:

• Adverse impact records of employment tests and selection procedures on persons identifiable by race, sex or ethnic group.

• Validity documentation.

Executive Order 11246

Employers with federal contracts worth more than $10,000:

Personnel records--retained for not less than one or two years depending on number of employees (150 or more) and size of contract ($150,000 or more)

• Hiring.

• Assignment.

• Promotion.

• Demotion.

• Transfer.

• Layoff or termination.

• Rates of pay or other compensation.

• Selection for training or apprenticeship.

• Requests for reasonable accommodations.

• Physical examination results.

• Job advertisements and postings.

• Applications.

• Resumes.

• Tests and test results.

• Interview notes.

• Expressions of interest submitted via Internet or electronic technology that were considered for a particular position.

• Internal resume database records:

  • Each resume added to the database.

  • Date each resume was added to the database.

  • Position for which each search was made.

  • Substantive search criteria.

  • Date of search.

• External resume database records:

  • Position for which each search was made.

  • Substantive search criteria.

  • Date of the search.

  • Resumes of job seekers who met the basic qualifications for the particular position who are considered by the contractor.

• Identification of job seekers contacted regarding their interest in a particular position.

Contractors must be able to identify the race, gender and ethnicity of each applicant or Internet applicant.

Affirmative Action Plan

Employers with 50 or more employees and a contract worth more than $50,000 must also maintain:

• Written Affirmative Action Plan and documentation of good faith effort.

Additional records

Other employment records are routinely maintained by employers, but they are not specifically listed in the above federal requirements. Such records include résumés, work history, performance evaluations, disciplinary records, personal commendations, sick days, vacation days, benefit enrollments, beneficiary designations, withholding statements, reports of reference checks, pre-employment investigations, worker compensation information and medical history.