Feb 15, 2013

Personnel Recordkeeping Requirements and Anti-Discrimination Laws

Before discarding any personnel records, make sure your recordkeeping practices comply with the requirements of recordkeeping and reporting requirements under anti-discrimination laws.

The United States Department of Labor and its commissions enforce federal anti-discrimination laws related to hiring, promotions, harassment, training, wages, benefits administration, and termination. Laws prohibiting discrimination on the basis of race, color, religion, gender (including pregnancy), national origin, disability or genetic information apply to employers with 15 or more employees. Laws prohibiting discrimination on the basis of age (40 or older) apply to employers with 20 or more employees.
Pennsylvania’s anti-discrimination laws apply to employers with four or more employees.
Employers and others must also comply with federal and state regulations including those under the federal Family and Medical Leave Act. Under these regulations, employers must create and maintain an employee’s personnel records and produce these records if requested during investigations and the administration and enforcement of the laws.

Employee Medical Records
Remember that employers must keep employee medical records confidential and separate from other personnel records. This includes documents such as certifications, re-certifications, medical histories, records created for medical leave, and correspondence regarding an employee or his or her family member’s medical information. Supervisors and managers may be given information relevant to work restrictions and accommodations, but only government investigators and first aid works may have unfettered access to this information.

Preservation of Personnel Records
In general, employers must keep employment records, including all applications for employment, as well as other hiring and firing information, for at least one year from the date the record was created or from the personnel action involved, whichever occurs later. If the employee was terminated, the record should be retained for at least one year from the effective date of the termination.

If the employee has filed a discrimination charge or any other lawsuit, employers must maintain all personnel records relevant to the charge until the litigation is terminated or the statute of limitations for action expires, whichever is later. This includes all applicant or employee’s records.

Extended Preservation of Personnel Records
As always there are important exceptions to keep in mind:

TWO YEARS: Political jurisdictions and school districts with 15 or more employees must retain personnel records for at least two years from the date the record was created or the personnel action involved, whichever occurs later. Where an employee is terminated, the political jurisdiction must retain the record for two years from the date of termination.

THREE YEARS: The Family Medical Leave Act (“FMLA”) applies to employees with 50 employees or more, and entitles employees to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage. State law may alter this requirement to apply to larger or smaller employers. Where an employee has taken medical leave days, employers must maintain related records for at least three years. These records could include basic personnel records, leave dates and times, correspondence, notes and e-mails, notices and writings, employer policies in effect at the relevant times, payments of health insurance premiums, and dispute records.

PERMANENT: If an employer maintains records of racial or ethnic identity of an individual separately from the records available to those responsible for personnel decisions, such as in an electronic database used for payroll, then such records should be preserved permanently.

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