Record-Keeping ‘Musts’ For Employers
By S. Brent Wakefield
As an employer, you know you have to keep employee records. However, there are several not-so-obvious record keeping requirements that you should be aware of to avoid potential problems. Here are seven prime examples:
- Excused Absences: The Family and Medical Leave Act (FMLA) allows for employees to take unpaid leave for family and medically related reasons. The law requires certain employers to make, keep, and preserve records such as: dates/hours of designated FMLA leave, doctor’s excuses, written notices given to employees by the employer, and records of disputes between employee and employer regarding FMLA. These records must be kept separate and apart from the usual personnel files.
- How Much You Pay Workers: The Fair Labor Standards Act (FLSA) requires employers to keep detailed records regarding employees’ wages. For instance, employers are required to track the time and day of the week when an employee’s workweek begins, total overtime earnings for the workweek, regular hourly pay and the employees birth date if he/she is younger than age 19. Payroll records have to be kept for 3 years, and all wage computations have to be kept for two years.
- Accidents: Under the Occupational Safety and Health Act of 1970 (OSHA), record-keeping requirements depend upon the type of industry involved. Employers not classified as “low-hazard” employers must record work-related injuries and illnesses that result in: death, missed days of work, medical treatment beyond first aid and loss of consciousness. Deaths or accidents resulting in the in-patient hospitalization of three or more employees must be reported to OSHA within 8 hours.
- Job Applications: The Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act (Title VII), and the Age Discrimination in Employment Act (ADEA) require employers to keep all resumes and job applications received in response to an advertisement or other notice of existing or anticipated job openings on file for 1 year. Additionally, the employer must keep records regarding the failure or refusal to hire the person.
- Video Applications: According to the EEOC Office of Legal Counsel, should an employer conduct video interviews of candidates, the videos must be kept in accordance with the EEOC’s record keeping requirements of paper applications. Of course, videos can depict information not otherwise lawful to inquire about on a traditional job application (e.g. race, national origin, obesity). Again, employers must keep records regarding the failure or refusal to hire all applicants.
- Genetics: The Genetic Information Non-Discrimination Act (GINA) requires that records that relate to an employee, former employee or job applicants’ genetic information must be kept separately from regular personnel files. For example, if the employer makes a request for medical information under FMLA or the ADA and receives information that relates to an employee’s genetics, that information must be filed separately and treated as a confidential medical record. These materials may be comingled with medical records kept pursuant to the ADA.
- Under Lock and Key: Remember those separately filed employee medical records? To ensure they are adequately “confidential” in compliance with the Health Insurance Portability and Accountability Act (HIPAA), the records should be kept in a locked file cabinet with limited access by as few administrative personnel as possible.
Some of these requirements may seem a bit trivial, but following them can save you from having to deal with potentially substantial issues in the future.
Brent Wakefield is a member of the Labor and Employment Practice Group at the Barber Law Firm. He can be reached at brent.wakefield@barberlawfirm.com.