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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 such 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?
All employers must generally post notices required by these statutes: Texas Payday Act; Texas Workers' Compensation Act (even non-subscribers); OSHA or Texas Hazardous Communication Act; Fair Labor Standards Act (if engaged in Interstate commerce or $500,000 in annual sales); Polygraph Protection Act. Under the Texas Payday Act, employers must post a notice regarding how often employees are to be paid. The Workers' Compensation poster must also be in Spanish if there are Spanish speaking employees.
Employers with more than 15 employees: EEOC notices required by Title VII and the Texas Commission on Human Rights Act, such as ADA notices and ADEA notices. These posters are available online at www.eeoc.gov.
Employers with 75 or more employees (in a 50 miles radius) must post a Family Medical Leave Act notice. It must be posted where it can be seen by applicants for employment as well as current employees.
Employers paying any employee $1500 or more in any quarter of the current or preceding year must post a Texas Unemployment Compensation Act poster.
Construction contractors with federal contracts or working on federally financed projects must post a Davis Bacon Act notice.
Employers with federal contracts or subcontracts (over a certain dollar value) must post non-discrimination and affirmative action plan notices as required by Executive Order 11246; the Rehabilitation Act; the Vietnam Veterans Readjustment Assistance Act; and notices required by the Service Contract Act and Walsh Healy Act.
Public (governmental) employers have additional posting requirements;
if you are a public employer and have questions about those requirements,
email us at labor-sp@strasburger.com.
WHAT ARE THE CONSEQUENCES OF FAILING TO POST?
Up to $110 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); Clark v. Resistflex
Co., 854 F.2d 762 (5th Cir. 1988).
WHERE CAN I GET THE POSTERS?
The United States Supreme Court decided in EEOC v. Waffle House, Inc., that an arbitration clause does not bar the EEOC from bringing an enforcement suit against an employer. Waffle House requires its employees to sign an agreement to resolve all employment disputes by binding arbitration. The EEOC brought an enforcement action against Waffle House relating to the termination of an employee. Waffle House sought to compel arbitration based on the arbitration clause, arguing that the clause barred the EEOC from bringing court action.
The Supreme Court noted that the EEOC derives its authority from
statutes independent of any agreement between the parties. The Court
found that, despite the public policy favoring enforcement of
arbitration agreements, the EEOC is free to pursue all available
remedies against an employer. However, an employee's conduct, such as
failing to mitigate damages or entering into a monetary settlement, can
limit the remedies available to the EEOC.
In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the United States Supreme Court clarified ADA disability standards. Williams, an assembly line paint inspector for Toyota, developed carpel tunnel syndrome on the job. Her doctor placed her on permanent work limitations that included lifting and carrying restrictions and prohibited repetitive flexing of her wrists or elbows. Toyota attempted to accommodate her limitations, but eventually terminated Williams for poor attendance. Williams sued Toyota alleging that it failed to accommodate her disability and terminated her in violation of the ADA. She alleged that she was disabled under the ADA primarily because she could not perform the "major life activity" of doing "manual tasks."
In a unanimous decision, the Supreme Court tasked a plaintiff with showing that he/she is prevented or severely restricted from doing activities that are central to most people's daily lives, not just the activities associated with that person's life or job. Examples of manual tasks that are central to the lives of most people include such things as household chores, bathing, and brushing one's teeth. The Supreme Court, however, stopped short of finding that Williams was not disabled.
The holding in Williams may actually complicate ADA-related-employment decisions for employers. The Supreme Court emphasized that the relevant analysis must focus on the impact the claimed impairment has on major life activity outside of the work environment. Many times the employer will not have direct access to that information and will be dependent on the employee to provide an accurate, relevant history.
Of note, the Department of Labor estimates that about two million employees suffer work-related musculoskeletal disorders, a third of which are sufficiently serious to warrant absence from work.
STRASBURGER &
PRICE, LLP • DISCLAIMER
This publication provides information on general legal issues
and is not intended to provide advice on any specific legal matters.