There is no law whose sole purpose is to impose a retention requirement for records on non-hired candidates and/or employees. There are, however, a variety of federal regulations -- most notably those designed to combat discrimination and other unfair labor practices -- for which record retention is a condition of compliance. Below is an overview of how your responsibility to retain a variety of personnel-related records is affected by these laws. This overview was prepared by CHRISTINA MORFELD, president of Affinity Business Communications.
Job Advertisements and Postings Pursuant to the Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), and Fair Labor Standards Act (FLSA), job advertisements and internal postings should be retained for a minimum of one year.
Resumes and Applications The ADA, Rehabilitation Act, Title VII of the Civil Rights Act, and ADEA require employers to keep all resumes and job applications on file for one year. Because the ADEA further stipulates a two-year retention period for paperwork for individuals over the age of 40 (something that may be difficult to determine and is, of course, illegal to ask), consider making it your policy to hold onto all resumes and applications for that long.
Employment Action Records Records relating to promotions, demotions, transfers, and terminations must be retained for one year according to the ADA, ADEA, and Title VII. While training records, in general, should also be kept on file for one year, those related to safety and health must be retained for three years in accordance with the Occupational Safety and Health Act (OSHA).
Wage and Hour Records The FLSA and Equal Pay Act oblige you to keep basic employment and earnings records for two years and payroll records for three years.
Tax Records Information relating to income tax withholdings must be retained for four years according to the Federal Insurance Contribution Act (FICA) and Federal Unemployment Tax Act (FUTA).
Retirement and Pension Records The Employee Retirement Income Security Act (ERISA) mandates that employee benefit plan information, including summary plan descriptions (SPDs) and annual reports, be kept on file for six years.
Leave Records Information relating to leaves of absence under the Family Medical Leave Act (FMLA), such as time off and medical certification, must be retained for three years.
I-9 Forms Under the Immigration Reform and Control Act of 1986 (IRCA), I-9 forms must be retained for three years after employment begins or one year following termination (whichever is later).
Job-Related Illness and Injury Records OSHA requires that information pertaining to job-related illness and injury be kept on file for five years. In cases of exposure to toxic substances or blood-borne pathogens, medical exam results must be retained for 30 years after the employee's termination.
Conclusion
Adhering to the federal record retention requirements described in this article is an important first step in protecting your organization from liability. Intended only as an overview, the above list of recordkeeping requirements is far from exhaustive. Your organization may be subject to other federal laws, in addition to state-level laws that may be even more stringent.
If you are starting a medical practice or are new to the field of Human Resources, you are encouraged to seek the advice of an employment law attorney for a more comprehensive explanation of your responsibilities under the law.
CHRISTINA MORFELD is president of Affinity Business Communications, a provider of high-quality instructional design, technical writing, and content development solutions. Contact her at 203-445-9964 or info@affinitybizcomm.com.
