Are You a Keeper? Employment Record Retention

This is a guest post by Toni Ahl, President at EEO Advantage. The views, thoughts, and opinions expressed in the text belong solely to the author and do not necessarily reflect the view of OutSolve or its employees. 

Some of us hold on to lots of things and some of us get rid of things very quickly. In our personal lives, these differences are not that important. In business, however, knowing when you may destroy or discard records is essential. Various agencies have different retention times for your business records. Since Spring frequently brings Spring cleaning to mind, I thought it might be a good time to discuss record retention.

The Law

The Equal Employment Opportunity Commission (EEOC) has jurisdiction over many of the employers in the country. Employers with fifteen (15) or more employers are subject to Title VII of the Civil Rights Act of 1964, as amended, (Title VII) the Americans with Disabilities Act of 1990, as amended, (ADA) and the Genetic Information Non-Discrimination Act (GINA). Employers with twenty (20) or more employees are subject to the Age Discrimination in Employment Act (ADEA). And, employers with only one (1) employee are subject to the Equal Pay Act (EPA). Regulations regarding EEOC’s recordkeeping requirements may be found in 29 CFR Part 1602. This regulation applies to all employers subject to the laws enforced by EEOC whether there has been a charge of discrimination filed or not.

What are the Recordkeeping Requirements?

Employers are required to keep all personnel or employment records for one (1) year. If an employee is involuntarily terminated, employers must maintain their personnel records for a minimum of one (1) year from the date of termination. The ADEA also requires that all payroll records for employees be kept for at least three (3) years. For ADEA purposes, employers must also keep on file any employee benefit plans for the full period the plans are in effect as well as for one year after the plans are terminated. Some types of employee benefit plans would be pension and insurance plans. In like manner, employers must maintain information about any written seniority merit system for the same time as benefit plans.

Records related to the EPA are covered under the recordkeeping requirements of the Fair Labor Standards Act (FSLA). Employers are required to keep payroll records for at least three (3) years. Employers must also retain all records (including wage rates, job evaluations, seniority and merit systems, and collective bargaining agreements) that explain the basis for paying different wages to employees of opposite sexes in the same establishment for at least two (2) years.

 What Happens if a Charge is Filed?

If a charge has been filed, retention and preservation of documents are explained to employers at the time the charge is filed. Personnel and employment records relating to the issue(s) under investigation for the charging party or other persons alleged to be aggrieved and to all other employees holding or seeking positions similar to that held or sought by the affected individual(s) must be retained by the employer until the final disposition of the charge or any lawsuit based on the charge. If a charge is not resolved during the investigation stage, a charging party may be issued a dismissal and notice of rights. A lawsuit must then be filed in Federal District Court within 90 days from the date of the notice. If there has been a finding of a violation, EEOC may decide to file suit on behalf of the charging party. The 90-day statutory filing period applies in this case also. Final disposition means the date of expiration of the 90-day statutory period within which the aggrieved person or EEOC may bring a suit or the date on which litigation is terminated, including any appeals.

 What about State Requirements?

I want to again point out that these retention periods are only for the statutes enforced by EEOC. States and local jurisdictions may have different and possibly longer retention periods. In Kentucky, an employee has up to five years to file a lawsuit alleging discrimination. Knowing retention periods for state and/or local records is important.

If you have any questions, feel free to contact Toni Ahl at eeoadvantage@gmail.com or (502) 553-7648. Happy Spring cleaning...I mean retaining!