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Millennium Resolutions Issue:
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WHO MUST KEEP |
RECORDS TO BE KEPT |
HOW LONG? |
WHY? |
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All employers with 15 or more employees |
"Non-discrimination data" Advertisements/ Personnel Files |
(1) One year from date of ad/application (2) One year from date of employment action |
To assist in proving absence of discrimination in employment action: ADEA; Title VII; ADA; TCHRA |
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All employers |
Payroll and tax records Name, address, date of birth, hours worked, absences, withholding, deductions, job title, pay rate, and weekly compensation |
Three years |
To provide hours worked, taxes paid. Texas Pay Day Act; FLSA; Equal Pay Act |
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All employers |
Employment eligibility records Completed Form I-9 and photocopies of supporting documents |
As long as employee works for you; updated if expiration date is on supporting documents |
Immigration Control and Reform Act |
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All employers |
Employee benefit plans Employee records (enrollment forms, etc.), summary plan descriptions, 5500's, trust documents, insurance policies |
Employer retains for at least six years after the plan's termination, and one copy of all plan documents indefinitely |
To satisfy ERISA's fiduciary duty requirements |
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All employers |
Seniority and merit systems |
For one year after the system's termination |
To prove absence of discrimination; ADEA; ERISA; Title VII; ADA; TCHRA |
The Americans With Disabilities Act
requires employers to keep employee medical records in separate files,
with access restricted to those who "need-to-know" about an
employee's medical condition. Prudent employers will search existing
personnel files and remove all medical records, including workers'
compensation-related records, drug testing results and doctors' notes
excusing an employee's absence and permitting a return to work. All these
records should be maintained in a separate, confidential "medical
information" file for each employee. Access should be restricted to
managers who need information regarding the employee's medical condition
in order to maintain workplace safety or accommodate any disability. In a
similar way, and even though no law requires an employer to maintain
personnel records separate from workers' compensation information, doing
so may help insulate an employer from retaliatory discharge liability. For
example, if ABC Corporation can show that it selected John Doe for lay-off
based solely on a comparison of employees' performance evaluations, which
were contained in personnel files that did not show which employees had
filed workers' compensation claims, ABC Corporation should have a strong
defense to a lawsuit claiming that Doe's workers' compensation claim
motivated his discharge. Thus, we recommend maintaining separate workers'
compensation files.
All required notices must be posted in a conspicuous place that employees are likely to see often.
WHO MUST POST? WHY MUST THEY POST?
WHAT ARE THE CONSEQUENCES OF FAILING TO POST?
Up to $100 fine for each separate offense under Title VII. 42 U.S.C. §2000e-10(b).
Limitations in a lawsuit may be tolled if the notice is the only way
employees would learn about their rights. Cruce v. Brazos Port Indep.
School Dist., 703 F.2d 862 (5th Cir. 1983).
The federal notices are available in a combined format from the G. Neil Co., 800.999.9111, or by writing to the London Publishing Co., 1156 15th Street NW, Suite 510, Washington, D.C. 20005; or BLR, 39 Academy Street, Madison, CT 06433; or (888) Go-Hr-Pro. Both the federal and state notices are also available from the local offices of the enforcing agencies.
STRASBURGER &
PRICE, LLP • DISCLAIMER
This publication provides information on general legal issues
and is not intended to provide advice on any specific legal matters.