Do you ever wish you had some assistance in complying with the plethora of federal human resource statutes such as reporting, disclosures, and postings? I do. There are so many requirements having to do with the maintenance and retention of employee files as well as other regulatory requirements that it’s easy to be overwhelmed.
Think about it:
You should already know you can be penalized for breaking the law if you don’t complete your required compliance reporting. A wise HR professional once taught me that all HR records should be completed in a way that will provide a defensible case for the organization.
Records and notices are among the best ways to demonstrate that your organization is treating employees ethically and fairly while respecting their rights. Notices can have a similarly positive message. Well-trained employees are fully aware of their rights, and the notices are not only required, but they are also good training tools used to educate employees.
Federal record-keeping requirements are extensive and often confusing, as are notice requirements for the various laws. Below is what I like to consider a “reference guide” to help track the basic requirements for the most common employment laws.
All federal employment laws have record retention requirements — usually one to three years. Your company’s general counsel can help you establish record retention policies. However, a general rule of thumb is to keep all employment records at least three years following separation. One exception to note: If you are aware of a pending lawsuit, or believe one may be filed, relevant records must be retained until the legal matter has been resolved.
**It should be noted that once discrimination or other lawsuits are brought against an employer, all records regarding the employee or employees who filed the complaint or lawsuit should be retained until the final disposition of the action.**
The ADEA prohibits employment discrimination on the basis of age. This law protects workers ages 40 and older.
It’s recommended to get signed waivers of ADEA rights to sue for age discrimination from employees in the protected age group (over 40) who leave your employment. An amendment to ADEA, the Older Workers Benefit Protection Act, makes waivers legal as long as the employee understands what he or she is signing, is advised to consult with an attorney before signing, and signs voluntarily. Waivers should be retained for at least one year from the date the employee separates.
The Americans with Disabilities Act (ADA), amended to the ADA Amendments Act or ADAAA in 2008, prohibits employers from discriminating against individuals on the basis of disability. Employers must keep a number of key documents to satisfy the record-keeping requirements of this Act.
Information from medical exams is confidential and must be maintained separately from other records. Access to medical records is limited (on a need-to-know basis) to the employee’s supervisors and managers, safety personnel, workers’ compensation insurers, and the employer’s general insurance carrier.
Title VII of the Civil Rights Act prohibits employment discrimination because of race, color, religion, sex, or national origin.
EEO-1 applies to all private employers who fit within these categories:
EEO-1 applies to all federal contractors (private employers) who:
Remember, companies may not file more than one EEO-1 report for the same address if the North American Industrial Classification System Code (NAICS) is the same for more than one of the entities. In other words, if your company has multiple entities at the same address and those entities, while legally distinct, engage in the same services, activities, or product development, you must now file a single consolidated report. For companies with complex organizational structures and/or significant acquisitions, this will require a detailed review and assessment of your filings.
Formally known as the State and Local Government Report, the EEO-4 survey is collected in odd-numbered years from state and local governments. Under Public Law 88-352, Title VII of the Civil Rights Act of 1964, all state and local governments that have 15 or more employees are required to keep records and to make such reports to the Equal Employment Opportunity Commission as are specified in the regulations of the Commission.
Those who must file this report include:
The Consolidated Omnibus Budget Reconciliation Act, better known as COBRA, provides a continuation of health insurance for employees and their families who lose their coverage because of termination, reduction of hours, divorce, or other life events.
Record keeping is not required by COBRA. However, it is best practice to keep certain related documentation, since proof of compliance with COBRA is required, and records are usually the best way to prove compliance.
Each employee’s records should be retained for as long as the employee or a family member is covered by COBRA.
It is also a good idea to keep records of notification to employees or other qualified beneficiaries of their rights under COBRA. This can be useful in cases in which people claim that they weren’t informed of their rights.
The Employee Polygraph Protection Act, or EPPA, bars lie detector tests to screen job applicants and limits the use of polygraph tests by employers for current employees. When polygraph tests are used — to investigate a possible employee theft, for example — the law requires employers to keep certain records.
EPPA records must be stored in a safe place and kept confidential. Disclosure of test results is limited to the person examined, the employer, courts, and government agencies that are authorized by a court to see the information.
Records should be retained for three years from the date of the test or from when the test was scheduled if it was not actually taken.
The Employee Retirement Income Security Act, or ERISA, governs retirement and other employee benefits and requires employers to keep records relevant to these benefits plans.
If you do not have an SPD for all of your medical plans, it’s highly recommended that you get with an attorney to design one for you ASAP.
Records should generally be retained for six years under ERISA, although records needed to determine eligibility for benefits should be kept as long as relevant.
The Equal Pay Act is actually part of another act called the Fair Labor Standards Act (FLSA) and requires equal pay for equal work regardless of an employee’s sex.
Retain records under the Equal Pay Act for at least three years.
In addition to requiring equal pay regardless of sex, the FLSA sets the minimum hourly wage, the minimum training wage, and overtime hours and rates. FLSA also encompasses child labor laws, including minimum ages and the types of jobs and hours minors are allowed to work.
All of these records must be retained for at least three years — unless otherwise noted.
A company that employs 50 or more employees for each working day for 20 or more calendar weeks in the current or preceding year is covered by The Family and Medical Leave Act (FMLA). The Act allows eligible employees up to 12 weeks of unpaid leave in a 12-month period for qualifying medical and family reasons.
It also allows eligible employees up to 26 weeks of unpaid leave in a 12-month period if the employee is the spouse, parent, child, or next of kin caring for a service member recovering from an injury or illness suffered while on active duty in the armed forces.
FMLA records must be retained for at least three years and must be available for inspection by the Department of Labor upon request.
Employee or family medical records must be kept separately and confidentially in compliance with the requirements of the Americans with Disabilities Act, as mentioned earlier. The only exceptions to this confidentiality provision are the following: Supervisors and managers may be informed of necessary restrictions on work, and first-aid providers and safety personnel may be informed on a need-to-know basis. Of course, government officials conducting an investigation under pertinent laws, such as the ADA or FMLA, may be provided with relevant information.
The Immigration Reform and Control Act prohibits the hiring of illegal aliens. Under this Act, all employees must certify that they are U.S. citizens or legal aliens and that they are legally permitted to work in the United States.
Records should be retained for three years after hire and/or one year after termination, whichever is later. Those records also need to be kept in a separate location for inspection purposes by the ICE.
The Occupational Safety and Health Act (OSHA) requires employers to provide employees with a workplace free from recognized hazards. Employers with 10 or more employees are required to keep certain key records for the Occupational Safety and Health Administration, or OSHA.
The OSHA Form 300 injury/illness log, the Form 300A annual summary, and all Form 301 incident reports should be kept for a minimum of five years following the year to which they relate.
Records of any medical examination required by OSHA or by exposure to toxic or hazardous substances should be retained for 30 years after the employee terminates employment.
OSHA has designated certain injury/illness records as “privacy concern cases.” Privacy concern cases involve injuries or illnesses to an intimate body part or the reproductive system, a sexual assault injury or illness, mental illness, HIV infection, hepatitis, tuberculosis, needlestick injuries, and cuts from objects contaminated with blood or other infectious material.
Employers with a privacy case may not enter the employee’s name on the logs, but rather should enter “privacy concern case” in place of the name. Then employers must keep separate, confidential lists of case numbers and employee names so that cases may be identified and updated.
Nearly all federal and most state employment laws have some notice requirements. These notice requirements instruct employers to post notices in the workplace to advise employees of their rights under the particular law. Posting notices as required by employment laws make employees aware of their rights under the law and sends the message that the organization takes the laws and regulations seriously.
The federal government has consolidated some of its posters to simplify posting requirements, which means that the same poster may be used to meet the requirements of several different laws in some cases. All posters are available from the U.S. Department of Labor.
The laws all state that notices must be posted in conspicuous locations where employees are likely to see them. For example: on employee bulletin boards; at employee entrances and exits or near time clocks; in the employee cafeteria, lunchroom or break room; and other such places. In addition, you can post these notices on a company Intranet, which is essential if you have telecommuters. Still, you would also need to have the paper copies in a conspicuous location.
Posters must be maintained in a good, legible condition. A case is often used to protect them.
Posters for many of the laws are available in Spanish as well as English.
Penalties for violation of notice requirements may be quite high, so make sure you are always in compliance. Properly displaying posters may also be helpful in defending against discrimination charges in some cases.
Finally, best practice is to track all of the information for the numerous laws and regulations above in one place. As you may be painfully aware, spreadsheets are no longer a good enough tool to keep up with all the growing demands of this Human Resource Compliance jungle as it continues to grow and change.
You need an HCM system like Scissortail that will provide you with options to manage and analyze your employee data in a user-friendly way. There’s no longer a need to learn special reporting programs in addition to all your other jobs. With Scissortail, you are able to export any page or screen to a report in one of nine formats that will most certainly work for your needs.
Audrey E. Moss Legal Brief, http://www.munckwilson.com