An Employer's Obligation to Maintain Employee Records

By Claire Saady, Esq.

All employers should be aware of the various federal and state laws requiring companies to maintain certain records regarding their employees. In the event of a lawsuit, an employer may be required to produce these records. Failure to do so can lead to fines and other adverse actions.

Title VII of the Civil Rights Act of 1964 requires employers to maintain all personnel or employment records made or kept by the employer. These include application forms, and records pertaining to hiring, promotion, demotion, transfer, layoff or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship. Employers must also keep all records relevant to a charge of discrimination or lawsuit brought against the employer. Employers with 100 or more employees must keep a copy of the EEOC's form EEO-1.

The personnel and employment records listed above must be kept for one year, either from the date the record was made, or from the date the personnel action was taken, whichever is later. Records relevant to a charge of discrimination or lawsuit must be kept until the final disposition of the charge or action.

Under the Age Discrimination in Employment Act (ADEA), employers must keep all payroll or other records containing each employee's name, address, date of birth, occupation, rate of pay, and compensation earned per week. The ADEA also requires employers to keep copies of employee benefit plans, as well as written seniority or merit rating systems. Even if the plan or system is not in writing, a summary memorandum must be kept.

The Fair Labor Standards Act (FLSA) requires employers to keep basic records containing employee information, payroll records, individual contracts or collective bargaining agreements, wage rate tables, work-time schedules, records of additions to or deductions from wages paid, and documentation of basis for payment of any wage differential to employees of the opposite sex in the same establishment.

The Occupational Safety and Health Administration (OSHA) requires a log and summary of occupational injuries and illnesses, briefly describing recordable cases of injury and illness, extent and outcome of each incident, and summary totals for calendar year, as well as a supplemental record containing more detailed information for each occurrence of injury or illness.

This is not a comprehensive list of record retention requirements. These federal laws, and other state laws, may include more requirements than those listed here.