In Focus: Federal Record Keeping Requirements

October 1, 2001 Advisory

Federal laws impose different requirements regarding the length of time employment-related documents must be kept. Here is a brief summary of some of those requirements.
1. What kind of records must be kept under Title VII of the Civil Rights Act ("Title VII") and the Americans With Disabilities Act? How long must they be maintained?
Title VII prohibits discrimination on the basis of race, sex, color, religion, national origin and ethnicity. The Americans With Disabilities Act ("ADA") prohibits discrimination on account of certain disabilities and may require employers to make workplace accommodations to disabled employees. The requirements for Title VII and the ADA are the same. Personnel records, including job applications and other hiring-related documents, records relating to demotion, promotion or transfer, and records regarding requests for reasonable accommodations, must be kept for one year from the date of making the record or the personnel action involved, whichever is later. Records relating to involuntary termination of an employee must be retained for one year from the date of termination. If a charge of discrimination is filed with the EEOC, all records relevant to the claims asserted must be kept until final disposition of the charge, which means either the last date on which an employee may file a complaint in court, or, if a court complaint is filed, when the court litigation terminates.

2. What are the record-keeping requirements under the Fair Labor Standards Act ("FLSA")?
The FLSA governs, among other things, the payment of wages to employees and the hours they may work. The requirements under the FLSA are vast. Below is a non-exhaustive summary of some its record-keeping requirements. Note that these records must be held at the place of employment or a central record-keeping office. The following records must be kept for three years: payroll records, union agreements guaranteeing employment and agreements or contracts that affect overtime pay or exclusions from the regular rate. Records that must be preserved for two years include: basic employment and earnings records that substantiate payroll (such as time cards and production cards) and records documenting wage additions and deductions.

3. What record-keeping requirements are imposed by the Age Discrimination in Employment Act ("ADEA")?
The ADEA prohibits discrimination on account of age. Its regulations follow the FLSA and Title VII, so its record keeping requirements overlap with the statutes described above. The ADEA mandates employers to retain the following documents for three years: payroll records, and other documents containing each employee's name, address, date of birth, occupation, rate of pay and weekly compensation. An employer who utilizes any of the following documents must keep them for one year from the date of the employment action to which the document relates: job applications and resumes, records relating to transfer, promotion, selection for training, layoff, recall or termination; the results of aptitude tests or physical exams and advertisements relating to job openings. If an employer has a pension, benefit or insurance plan or seniority or merit based system of any kind, then documents relating to such plans must be kept for one year after the termination of the plan or benefit. Also, documents relating to claims of discrimination must be retained according to the requirements imposed by Title VII, as described above.