COVID-19 Resource Center

July 29, 2021

Recordkeeping: Obligations of Private Employers

By James F. Devine, Esq. and Alexa Potts

             Recordkeeping is a crucial employer responsibility. Proper recordkeeping allows for maintenance of a timeline and documentation surrounding any issues that may arise in the workplace. Moreover, federal law regulates various aspects of recordkeeping, such as the length of time records must be preserved, and the types of documents employers must have on file.

            To begin, employers with fifty (50) or more employees are subject to the Family Medical Leave Act (FMLA). Records relevant to the FMLA are governed by the recordkeeping requirements of the Fair Labor Standards Act (FLSA). 29 C.F.R. § 825.500(a). Although the law does not specify a manner in which FMLA records must be preserved, employers are obligated to maintain FMLA documents for a minimum of three (3) years and make the records available to the Department of Labor (DOL) upon request. Id. § 825.500(b). The Code of Federal Regulations provides a list of documents employers must maintain, including but not limited to dates FMLA leave is taken by FMLA eligible employees, records of any dispute between the employer and an eligible employee regarding designation of leave as FMLA leave, and copies of employee notices of leave furnished to the employer under FMLA. Id. § 825.500(c).

            Employers with fifteen (15) or more employees are subject to the Americans with Disabilities Act (ADA). Records pertaining to the ADA must be preserved for one (1) year from “the date of the making of the record or the personnel action involved, whichever occurs later.” Id. § 1602.14. For example, if an employee presents documentation to an employer requesting a reasonable accommodation and is subsequently provided with a reasonable accommodation, the documentation should be kept for one (1) year from the date that the reasonable accommodation was implemented, since this occurred after the accommodation paperwork was presented. Employers must retain all personnel records relating to a discrimination charge until final disposition of the charge or the action; that is, when the statutory period for bringing the claim has expired. Id. It must also be noted that the FMLA provides that an active employee, eligible for benefits, may take a leave of absence for up to five (5) years and retain their eligibility under the Act.  So although the FLSA and FMLA may suggest that three (3) years is the defined period for record retention, there is a strong argument to preserve for at least five (5) years post-employment. 

            The Equal Employment Opportunity Commission (EEOC) requires all employers subject to federal anti-discrimination laws to maintain all personnel or employment records for one (1) year. If an employee is involuntarily terminated, this year-long maintenance of records begins on the termination date. Employers must keep all payroll records for a minimum of three (3) years, and any records that demonstrate why pay rates differ between males and females must be retained for at least two (2) years. When an employee files a complaint against an employer, the employer must “preserve all personnel records relevant to the charge or action until final disposition of the charge or the action.” Id. § 1602.14.

            Employers with less than ten (10) employees do not need to keep documentation per the Occupational Safety and Health Administration (OSHA) unless specifically told to do so by OSHA. Id. § 1904.1. Employers with ten (10) or more employees must keep record of work-related fatalities, injuries, and illnesses. Id. § 1904.4. According to the law, “an injury or illness is work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.” Id. § 1904.5. The Code of Federal Regulations provides extensive guidance to help employers determine if an injury or illness must be recorded for OSHA purposes. Workplace injuries and illnesses must be recorded on the OSHA 300, 300-A, and 301 forms. Id. § 1904.29. Information must be logged in these forms within seven (7) days of receipt of the information. Id. Lastly, these logs must be saved for five (5) years following the end of the calendar year covered by the employee records. Id. § 1904.33.

            Workers’ compensation recordkeeping requirements differ by state since state legislatures oversee workers’ compensation boards. The Pennsylvania Workers’ Compensation Act does not contain a recordkeeping retention requirement, so employers must turn to other applicable state and federal laws. 77 Pa. Cons. Stat. § 41 (2021).

            Employers must also remain aware of state recordkeeping laws. For example, Pennsylvania law requires employers to retain payroll records for at least four (4) years after “contributions relating to the records have been paid.” Pennsylvania employers must also maintain daily attendance records for at least two (2) years. 34 Pa. Code § 63.64 (2021). Thus, it is important that employers remain cognizant of the fact that state laws also impose recordkeeping requirements, even if certain federal laws do not apply to a particular employer. However, if employers are subject to federal laws and federal laws differ from state or local laws, employers must follow federal guidelines. 29 C.F.R. § 1602.29.

            Some employers choose to retain records for seven (7) years, because this timeframe allows for compliance with most state and federal laws. However, with the ease of storing records electronically, employers should consider maintaining records for longer periods of time. Put simply, employers are less likely to run into legal issues if records are easily accessible should unexpected matters arise. What all employers should do is evaluate the recordkeeping responsibilities based on size and scope of employment base and work duties and devise a policy and protocol for an appropriate record retention program for their business.

            If you are in need of assistance in reviewing your record-keeping protocol, please contact one of the attorneys in our Employment Law Group at EmploymentLaw@c-wlaw.com or 1-888-488-2638.