RECORD RETENTION GUIDELINES

Transcription

1 RECORD RETENTION GUIDELINES This record retention table has been prepared by Lehr Middlebrooks Vreeland & Thompson, P.C., for NALP, the National Association of Landscape Professionals. This table covers minimum employment record retention requirements under U.S. federal employment law as it exists on June 8, Where different employment statutes have different retention requirements for the same type of document, the requirements of each statute are separated by a dashed line. You should retain documents for at least the longest period of time required by any law that applies to your workplace. Depending on your industry or your state(s) of operation, additional or different retention requirements may apply. It is also possible that some law affecting document retention has been added between the date this table was prepared and the day you consult it. This table covers only the minimum recordkeeping requirements. It is our experience that well-trained supervisors and responsible employers will create records with useful lives that exceed these requirements. As electronic storage options render many space and security concerns obsolete, many businesses now find it cost-effective to retain core employment documents like personnel files and payroll records indefinitely. Accordingly, this table also covers the rules applicable to using electronic recordkeeping to satisfy these requirements. As of June 8, 2015, forty-seven states and the District of Columbia have enacted the Uniform Electronic Transactions Act (UETA). The relevant portion of the UETA permits electronic record storage as long as it (1) accurately reflects the information set forth in the record as it was first generated in final form as an electronic record or otherwise; (2) remains accessible for later reference; and (3) another law or regulatory body does not require the record to be maintained in some other format. The three states that have not enacted UETA Illinois, New York, and Washington have laws permitting electronic recordkeeping, but these laws impose additional requirements beyond UETA. This table is not to be construed as or used as a substitute for legal advice. Please contact at rlehr@lehrmiddlebrooks.com or, at wbrown@lehrmiddlebrooks.com if you have questions regarding the application of these principles to a particular situation.

2 Core Personnel Records Employee Personnel Files Section 1981 (race discrimination): Applies to all employers. In most circumstances, 4 years after termination. While retention of personnel files is not required by Section 1981, retaining employee files puts the employer in the best position to defend an employment suit. Retention for this period will also provide adequate protection and comparator evidence to defend an employment suit. State employment or contract Consult statute of limitations for contract and employment actions. Some state laws have separate employee file retention requirements. In limited circumstances, this statute of limitations will apply to Section 1981 actions. Title VII/ADA/GINA: Applies to employers with 15 or more employees in 20 or more payweeks in the current or previous calendar year. 1 year after termination. Timekeeping Records FLSA: Applies to all employers. 2 years. original time cards and schedules

3 Core Personnel Records Compensation Records (including fringe benefits paid) FLSA: Applies to all employers. 3 years. The same three year retention period applies under the ADEA. ( tax and withholding records for 4 years or as your accountant or tax lawyer advises to comply with federal tax law) Title VII/ADA/GINA: Applies to employers with 15 or more employees in 20 or more payweeks in the current or previous calendar year. 2 years. While Title VII requires retention for only 1 year, the Ledbetter Equal Pay Act modified Title VII to permit recovery for pay discrimination for two years, even if the underlying discriminatory pay decision was years earlier. Many employers and commentators have construed the Ledbetter Act to require indefinite retention, which is probably overkill. Section 1981 (race discrimination): Applies to all employers. In most circumstances, 4 years after pay decision. While retention of compensation records is not required by the Section 1981, retaining employee files puts the employer in the best position to defend an employment suit. State employment or contract law Consult statute of limitations for these actions. Some state laws have separate employee file retention requirements. In limited circumstances, this statute of limitations will apply to Section 1981 actions.

4 Core Personnel Records Employment Agreements; Plans for Premium Pay Rates, Gifts, and Other Compensation that Does Not Affect the Regular Rate. FLSA: Applies to all employers. 3 years. I-9 Forms U.S. Citizenship and Immigration Service Covers all employers Have to be maintained throughout employee's employment, AND the longer of: 1 year after termination; OR 3 years after hire. Electronic storage must meet these requirements: Include controls to ensure the integrity, accuracy and reliability of the electronic storage system. Include controls to detect and prevent the unauthorized or accidental creation of, addition to, alteration of, deletion of or deterioration of an electronically stored Form I-9, including the electronic signature, if used. Include controls to ensure an audit trail so that any alteration or change to the form since its creation is electronically stored and can be accessed by an appropriate government agency inspecting the forms. Include an inspection and quality assurance program that regularly evaluates the electronic generation or storage system, and includes periodic checks of electronically stored Forms I-9, including the electronic signature, if used. Include a detailed index of all data so that any particular record can be accessed immediately. Produce a high degree of legibility and readability when displayed on a video display terminal or reproduced on paper. Keep I-9s in a separate binder for ease of access in case of audit.

5 Recruitment Job Postings and Advertisements OFCCP: Applies to covered federal contractors and subcontractors. 2 years after record created or employment decision made, whichever is later. Electronic storage must meet these requirements: Have reasonable controls to ensure the integrity, accuracy, authenticity, and reliability of the records kept in electronic format; Be capable of retaining, preserving, retrieving, and reproducing the electronic records; Be able to readily convert paper originals stored in electronic format back into legible and readable paper copies; and Have adequate records management practices in place. Contractors with fewer than 150 employees or a contract of less than $150,000 need keep these records for a period of only 1 year. Section 1981 (race discrimination): Applies to all employers. In most circumstances, 4 years. While retention of postings is not required by Section 1981, retaining postings puts the employer in the best position to defend a suit based on the posting. Retention for this period will also provide adequate protection and comparator evidence to defend an employment suit. State employment or contract law Consult statute of limitations for contract and employment actions. Even if state law does not require retention of postings; retention puts the employer in the best position to defend a suit based on the posting. In limited circumstances, this statute of limitations will apply to Section 1981 actions.

6 Recruitment Employment Applications and Expressions of Interest OFCCP: Applies to covered federal contractors and subcontractors. 2 years after record created or employment decision made, whichever is later. Electronic storage must meet these requirements: Have reasonable controls to ensure the integrity, accuracy, authenticity, and reliability of the records kept in electronic format; Be capable of retaining, preserving, retrieving, and reproducing the electronic records; Be able to readily convert paper originals stored in electronic format back into legible and readable paper copies; and Have adequate records management practices in place. Contractors with fewer than 150 employees or a contract of less than $150,000 need keep these records for a period of only 1 year. Section 1981 (race discrimination): Applies to all employers. In most circumstances, 4 years. While retention of applications is not required by Section 1981, retaining applications puts the employer in the best position to defend a suit based on the denial of the position. Retention for this period will also provide adequate protection and comparator evidence to defend an employment suit. State employment or contract law Consult statute of limitations for contract and employment actions. Even if state law does not require retention of application; retention puts the employer in the best position to defend a suit based on the hiring decision. In limited circumstances, this statute of limitations will apply to Section 1981 actions.

7 Recruitment Evidence of Policy Dissemination; Outreach Efforts to Covered Veterans and Individuals with Disabilities OFCCP: Applies to covered federal contractors and subcontractors. 3 years. Electronic storage must meet these requirements: Have reasonable controls to ensure the integrity, accuracy, authenticity, and reliability of the records kept in electronic format; Be capable of retaining, preserving, retrieving, and reproducing the electronic records; Be able to readily convert paper originals stored in electronic format back into legible and readable paper copies; and Have adequate records management practices in place.

8 Medical Records Employee Medical Files OSHA: Applies to all employers OSHA-required medical records must be kept for 30 years after termination. OSHA permits computerized recordkeeping if the computer can produce equivalent forms when they are needed. OSHA defines the medical records to be retained expansively, including the results of medical exams, medical opinions and diagnoses, in addition to exposure records and formal studies of work-related health conditions. Because of ADA requirements for confidentiality, medical files should be kept separately from employee files. Medical files should include any medical record, including drug testing results, doctors notes, communication related to ADA accommodation, or FMLA requests (if not kept in a separate FMLA file). Workers Compensation Files OSHA: Applies to all employers. State body overseeing workers compensation administration. These files technically qualify as medical records to be retained for 30 years after termination under OSHA. OSHA permits computerized recordkeeping if the computer can produce equivalent forms when they are needed. Your state workers compensation statute may provide an alternative document retention range; however, we recommend following the OSHA rule.

9 Medical Records FMLA Files FMLA: Applies to employers with 50 or more employees in 20 or more payweeks in the current or previous calendar year. OSHA: Applies to all employers. 3 years following the end of the employee s employment or leave exhaustion. FMLA leave for the employee s own medical treatment might be medical records under OSHA, subject to the 30 year retention requirement. The FMLA regulations do not require any particular form of recordkeeping, so electronic storage is permitted. OSHA permits computerized recordkeeping if the computer can produce equivalent forms when they are needed. Because of ADA confidentiality requirements and GINA prohibitions against discrimination because of an employee s family medical history (which could be garnered from an FMLA request to care for a parent, for example), FMLA records should be kept separately from the employee file. To our knowledge, OSHA has not sought dedicated FMLA files or certifications even though these contain diagnoses and opinions that otherwise fit OSHA s definition of employee medical records that must be retained for 30 years. OSHA Forms 300, 300A, 301 OSHA: Applies to all employers; some small employers (fewer than 10 employees) and employers in certain exempt industries may be exempt from keeping these records. On a calendar year basis, the current year and the previous 5 years. OSHA permits computerized recordkeeping if the computer can produce equivalent forms when they are needed.

10 Benefit Records Employee Benefit Plan Related s ERISA: Applies to all employers The longer of: 6 years; OR The state contract claim statute of limitations; OR The period for which the records might contain information relevant to a benefits determination. Electronic storage must meet these requirements: The electronic recordkeeping system has reasonable controls to ensure the integrity, accuracy, authenticity and reliability of the records kept in electronic form; The electronic records are maintained in reasonable order and in a safe and accessible place, and in such manner as they may be readily inspected or examined (for example, the recordkeeping system should be capable of indexing, retaining, preserving, retrieving and reproducing the electronic records); The electronic records are readily convertible into legible and readable paper copy as may be needed to satisfy reporting and disclosure requirements or any other obligation under Title I of ERISA; The electronic recordkeeping system is not subject, in whole or in part, to any agreement or restriction that would, directly or indirectly, compromise or limit a person's ability to comply with any reporting and disclosure requirement or any other obligation under Title I of ERISA; and Adequate records management practices are established and implemented (for example, following procedures for labeling of electronically maintained or retained records, providing a secure storage environment, creating back-up electronic copies and selecting an off-site storage location, observing a quality assurance program evidenced by regular evaluations of the electronic recordkeeping system including periodic checks of electronically maintained or retained records, and retaining paper copies of records that cannot be clearly, accurately or completely transferred to an electronic recordkeeping system). s covered by this provision include, but are not limited to, documents like: summary plan documents; annual and quarterly reports; monthly funding reports; notices; reportable events; plan termination. We recommend you apply the same retention period to COBRA continuation documents as well. Some states have excluded notices of the termination of health or life insurance benefits from UETA. While this exclusion would logically apply only to how the notice is sent not how it is retained very cautious employers may want to review their state s UETA scope provision before moving to exclusivelyelectronic storage of benefit documents.

11 Benefit Records Forms 5500 ERISA: Applies to all employers 6 years from original due date. Electronic storage must meet these requirements: The electronic recordkeeping system has reasonable controls to ensure the integrity, accuracy, authenticity and reliability of the records kept in electronic form; The electronic records are maintained in reasonable order and in a safe and accessible place, and in such manner as they may be readily inspected or examined (for example, the recordkeeping system should be capable of indexing, retaining, preserving, retrieving and reproducing the electronic records); The electronic records are readily convertible into legible and readable paper copy as may be needed to satisfy reporting and disclosure requirements or any other obligation under Title I of ERISA; The electronic recordkeeping system is not subject, in whole or in part, to any agreement or restriction that would, directly or indirectly, compromise or limit a person's ability to comply with any reporting and disclosure requirement or any other obligation under Title I of ERISA; and Adequate records management practices are established and implemented (for example, following procedures for labeling of electronically maintained or retained records, providing a secure storage environment, creating back-up electronic copies and selecting an off-site storage location, observing a quality assurance program evidenced by regular evaluations of the electronic recordkeeping system including periodic checks of electronically maintained or retained records, and retaining paper copies of records that cannot be clearly, accurately or completely transferred to an electronic recordkeeping system).

12 Benefit Records Written Employee Benefit Plans and Seniority or Merit System Records not Covered by ERISA or other Law or Contractual Agreement ADEA: Applies to employers with 20 or more employees in 20 or more payweeks in the current or previous calendar year. During the Plans effective period and one year after the termination of the Plan.

13 Miscellaneous Records Collective Bargaining Agreements FLSA: Applies to all employers. 3 years. Affirmative Action Plans OFCCP: Applies to covered federal contractors and subcontractors. Current year and previous year. Electronic storage must meet these requirements: Have reasonable controls to ensure the integrity, accuracy, authenticity, and reliability of the records kept in electronic format; Be capable of retaining, preserving, retrieving, and reproducing the electronic records; Be able to readily convert paper originals stored in electronic format back into legible and readable paper copies; and Have adequate records management practices in place. Affirmative Action Annual Reports OFCCP: Applies to covered federal contractors and subcontractors. 3 years. Electronic storage must meet these requirements: Have reasonable controls to ensure the integrity, accuracy, authenticity, and reliability of the records kept in electronic format; Be capable of retaining, preserving, retrieving, and reproducing the electronic records; Be able to readily convert paper originals stored in electronic format back into legible and readable paper copies; and Have adequate records management practices in place. Includes annual calculations of recruitment and hiring proportions of covered veterans and individuals with disabilities.

14 Miscellaneous Records EEO-1 Reports OFCCP: Applies to covered federal contractors and subcontractors. Current year and previous 3 years. No regulation specifies a date; this guideline is based on audit experience with the OFCCP. EEOC: with 100 or more employees must complete the EEO-1. VETS-4212 / VETS-100 / VETS-100A OFCCP: Applies to covered federal contractors and subcontractors. Current year and previous 3 years. No regulation specifies a date; the 2014 VETS-100A form requires one year retention; the 2014 VETS-100 form requires two years retention. This guideline is based on audit experience with the OFCCP.

15 Miscellaneous Records Records concerning an employee involved in or contemplating litigation or administrative action against the company All employers With advice of counsel, prepare litigation hold notice and plan for preservation of documents beyond any automatic destruction dates. With advice of counsel, prepare litigation hold notice and plan for preservation of documents beyond any automatic destruction dates. Discuss plans for retention of metadata (the data that indicates how and when and by whom an electronic file is created, modified, or moved). Your attorney may (and likely will) instruct you that once litigation is anticipated, you should preserve all documents in all forms, even if they are otherwise exact duplicates. Your attorney may (and likely will) also instruct you to preserve metadata. Your attorney should also instruct you in detail on the concepts of attorney-client privileged communication and confidential work product, explaining how these apply to physical and electronic records and communications docx