One of the most frequently asked questions is how long a company must retain employee records under various federal labor and employment laws. Here are the answers:
Fair Labor Standards Act (FLSA)
Under the FLSA, you must keep records for either two years or three years, depending on the type of document. Supplementary basic records (such as basic employment, earnings records and wage rate tables), order, shipping, and billing records, and records of additions to or deductions from wages, are required to be kept for two years. And payroll records, certificates, agreements, plans, notices, and sales and purchase records must be kept for a period of three years.
Civil Rights Act of 1964, Title VII, and the Americans with Disabilities Act (ADA)
Under these three laws, employers with at least fifteen employees must retain employment applications and other personnel records relating to hiring, rehiring, testing, promotion, transfer, demotions, selection for training, layoffs, recalls, terminations or discharges, for a period of one year from the creation of record or the taking of a personnel action. Title VII and the ADA also require that basic employee demographic data, pay rates, and weekly compensation records be retained for at least one year.
Age Discrimination in Employment Act (ADEA)
Under the ADEA, employers with 20 or more employees must retain the same records as described in the previous three laws for one year.
Family and Medical Leave Act (FMLA)
The FMLA requires the retention, for a period of three years, of certain records involving payroll and demographic information, as well as information related to an employee’s family or medical related leave of absence.
Occupational Safety and Health Act (OSHA)
Finally, OSHA requires that records of job-related injuries and illnesses be kept for five years. Under OSHA, employers are also required to fill out and post an annual summary of job-related injuries and illnesses. In addition, records related to medical exams along with records relating to toxic substances and blood-borne pathogen exposure must be retained for thirty years after the termination of employment.
The particular requirements faced by an employer may vary according to a specific situation. There are also various state laws that may differ from the federal requirements. Employers are advised to seek the advice of counsel when establishing an employee document retention program.