FEDERAL RECORDKEEPING RECORD RETENTION WHAT RECORDS - FOR HOW LONG

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1 FEDERAL RECORDKEEPING RECORD RETENTION WHAT RECORDS - FOR HOW LONG

2 Federal recordkeeping requirements are extensive. The following table explains in digest form some of the most important requirements that apply to most Employers. Please note that not all Employers are covered by all laws. Record Period Age Discrimination in Employment Act (ADEA) The ADEA prohibits employment practices that discriminate on the basis of age, unless age is a bona fide occupational qualification (BFOQ) or the practice is based on reasonable factors other than age. The Act covers employers with 20 or more employees, labor unions with 25 or more members, local and state governments and employment agencies, and generally extend to individuals who are age 40 and over. Job applications, resumes, other forms of job inquiries Promotions, demotions, transfers, training selection, layoff, recall or discharge Job orders submitted to employment agencies; candidate test papers for any position; physical exam results if used in employment decisions; ads or notices relating to job openings, training opportunities, or opportunities for overtime Employee benefit plans. (Note: for employee benefit plan, records must be kept for one year from termination of plan.) Payroll or other records containing employee name, address, date of birth, occupation, rate of pay, and compensation earned each week Note: Where a charge or lawsuit is filed, all relevant records must be kept until final disposition of the charge or lawsuit. 1 year from date of action. See Note Older Workers Benefit Protection Act (OWBPA) - Amendment to ADEA Payroll or other records containing each employee s name, address, date of birth, occupation, rate of pay, and weekly compensation Americans with Disabilities Act The ADA prohibits employment practices that discriminate against persons with disabilities. Its provisions apply to virtually all employers with 15 or more employees. Applications and other personnel records (e.g. promotions, transfers, demotions, layoffs, terminations) requests for reasonable accommodation Where a charge or lawsuit is filed, all relevant records must be kept until final disposition of the charge or lawsuit. 1 year from making the records or taking the personnel actions. 2

3 Civil Rights Act of 1964 Title VII of the Civil Rights Act prohibits discrimination against employees or job applicants on the basis of race, color, religion, sex, or national origin. It extends to all aspects of employment including any term, condition or privilege of employment. Title VII covers all companies with 15 or more employees doing business in interstate commerce. Applications and other personnel records (e.g. promotions, transfers, demotions, layoffs, terminations), including records for temporary or seasonal positions 1 year see notes Requires the filing of annual EEO-1 Report (for Federal contractors with 50 or more employees, non-contract employers with 100 or more) Where a charge or lawsuit is filed, all relevant records must be kept until final disposition of the charge or lawsuit. A copy of the current EEO-1 Report must be retained. Davis Bacon Act The Davis-Bacon Act requires employers to pay prevailing wages, plus the value of prevailing employee benefits, to laborers and mechanics employed in the construction or repair of public works and facilities. The Department of Labor makes specific wage determinations applicable to such contracts and publishes them from time to time in the Federal Register. Employers subject to the Act must also pay time and a half for hours worked in excess of 40 per week. People employed off site, those employed on site, and those employed on site in non-construction jobs are not covered by the law. Payroll records containing name, address, job classification, rate of daily and weekly pay, hours worked, deductions, and actual pay for each employee Equal Pay Act This Act prohibits discrimination on the basis of sex in the wages paid for equal work on jobs that require equal skill, effort, and responsibility and that are performed under similar working conditions. The EPA covers all employers subject to the Fair Labor Standards Act. Payroll records including time cards, wage rates, additions to and deductions from wages paid, and records explaining sexually based wage differentials Executive Order 11246, OFCCP Rules This order requires government contractors to commit to equal employment opportunity and affirmative action or risk losing government contracts. Government contractors are required to take affirmative action in employment for people with disabilities, veterans with disabilities, and veterans of the Vietnam era. For federal contractors, subcontractors: affirmative action programs, utilization analyses, other supporting documents including applicant logs, wage increases, transfers, promotions and related matters. (Note: It is a good idea to keep these records for as long as possible at least ) 3

4 Fair Labor Standard Act (FLSA) The Fair Labor Standards Act (FLSA), also known as the federal Wage and Hour Law, regulates minimum wages, overtime, equal pay, recordkeeping and child labor for employees of enterprises engaged in interstate or foreign commerce and employees of state and local governments. Payroll or other records containing the following information for each employee: Employee s name, home address, date of birth (if under 19 years of age), gender and occupation Time of day/day of week for beginning of workweek Regular hourly rate of pay or other basis of payment (hours, daily, weekly, piece rate, commission on sales, etc.) Daily hours worked and total hours for each workweek Total daily or weekly straight-time earnings (exclusive of overtime premiums) Total additions to and deductions from wages for each pay period Total wages per paid period Date of each payment of wages and the period covered by the payment For executive, administrative, and professional employees, or those employed in outside sales, employers must maintain records which reflect the basis on which wages are paid in sufficient detail to permit calculations of the employee s total remuneration, perquisites, including fringe benefits Federal Unemployment Tax Act (FUTA) Annual records showing total wages for each employee, amount of taxable pay, reason, if the amount does not equal total pay, amount paid into state unemployment fund including 4 years After tax is due/paid deductions from employee pay, experience-rating data. Immigration Reform and Control Act (IRCA) The Federal Immigration Reform and Control Act (IRCA) of 1986, as amended, prohibits employers from hiring illegal aliens. This means that employers are required to verify that employees hired after November 6, 1986, are legally entitled to work in this country. INS Form I-9 (Employee Eligibility Verification Form) signed by each newly-hired employee and the employer. Form I-9 must be kept for three years after the worker is hired or one year after termination, whichever is later. Also, keep copies of supporting identification and work authorization documents. 4

5 Family and Medical Leave Act The FMLA (29 USC 2601) requires covered employers to provide up to 12 weeks of unpaid leave to eligible employees for a variety of reasons related to family and medical care. While the FMLA is the first comprehensive federal law to require such leave, many states and a handful of localities have had similar laws in effect for some time. Records containing the following information: Basic employee data to include name, address, occupation, rate of pay, terms of compensation, daily and weekly hours worked per pay period, additions to/deductions from wages Dates of leave taken by eligible employees. Leave must designated as FMLA leave For intermittent leave, the hours of leave Copies of employee notices and documents describing employee benefits or policies and practices regarding paid and unpaid leave Records of premium payments of employee benefits Records of any dispute regarding the designation of leave Employee medical records must be kept separately, confidentially. National Labor Relations Act (NLRA) The National Labor Relations Act requires reporting and disclosure both by unions and employers on financial matters affecting all activities by either group to persuade or dissuade employees from joining or continuing membership in labor unions. Records repayment reports, agreements (includes vouchers, worksheets, receipts), and 5 years applicable resolutions. Social Security Act (FICA) Employee names, addresses, Social Security number, date, amount, period of services paid 4 years for, amount of pay taxable as wages, reasons for discrepancies, amount of tax collected, date, tips reports. Occupational Health and Safety Act (OSHA) Log of occupational injuries and illnesses Supplementary record of injuries and illnesses Post a completed annual summary of injuries and illnesses Maintain medical records and records of exposure to toxic substances for each employee Employers with 10 or fewer employees are exempt from most recordkeeping requirements Current + 5 years Employee s job tenure + 30 years 5

6 Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) This law requires employers with Federal contracts or subcontracts of $25,000 or more to provide equal opportunity and affirmative action for Vietnam-era veterans, special disabled veterans, and veterans who served on active duty during a war or campaign. For federal contractors, subcontractors with contract up to $10,000; Documentation on number of Vietnam-era veterans hired during 12-months, reported annually to EEOC (Form 1 year VETS-101). Complaints taken under Act. For federal contractors and subcontractors with contracts of $25,000 or more; the law requires affirmative action regarding special disabled veterans, veterans of the Vietnam era, and any other veterans who served on active duty during a war, campaign, or expedition for which a campaign badge has been authorized (e.g., covered veterans). Documentation is required, detailing (1) the number of employees in the contractor s workforce, by job category and hiring location, who are special disabled veterans, veterans of the Vietnam era, or other covered veterans; (2) the number of special disabled veterans, veterans of the Vietnam era, or other covered veterans hired during the previous 12 months; and (3) this information must be reported annually and must also be recorded. 1 2 years; See Notes Notes: For employers with fewer than 150 employees or a government contract at less than $150,000; one year; for employers with more than 150 employees or a government contract of at least $150,000, two years. Employee Retirement Income Security Act (ERISA) Health and Welfare Plans Governing Documents Plan documents, including insurance contracts for insured plans Plan amendment and restated plan documents Formal adoption of plan and plan amendment Trust agreements longer of 8 years or benefits statute of longer of 8 years or benefits statute of longer of 8 years or benefits statute of longer of 8 years or benefits statute of SPDs, summaries of material modifications or material reduction in benefits including compliance with distribution longer of 8 years or benefits statute of Delegation of fiduciary responsibility As long as fiduciary exercises delegated authority plus 6 years This information is being supplied as a consulting service only. It is not meant, nor should it be construed as legal advi ce as to an employer s record retention 6

7 Enrollment, Election and Eligibility Records Records identifying which individuals are employees Records supporting service and other plan requirements for employee eligibility; spouse eligibility, dependent child eligibility, or domestic partner eligibility Employee enrolment forms and enrollment materials Insurance applications for eligible individuals Beneficiary designations and effective court orders Any insurer communication regarding definition of eligible employee longer of 8 years or benefits statute of As long as individual is eligible under the plan plus longer of 8 years for plans that file or would file claims information on Form 5500 or benefits statute of The longer of 8 years for plans that file or would file claims information on Form 5500 or benefits statute of. (Statute of would not apply to enrollment materials.) As long as the employee is enrolled under the plan plus the longer of 8 years for plans that file or would file claims information on Form 5500 or benefits statute of. Until payment of all plan benefits with respect to employee are made plus longer of 8 years for plans that file or would file claims information on Form 5500 or benefits statute of. Term of contract plus longer of 8 years for plans that file or would file claims information on Form 5500 or benefits statute of. Employee Retirement Income Security Act (ERISA) Health and Welfare Plans Form 5500 Form 5500 and attachments 8 years or permanent Substantiation of number of plans maintained 8 years or permanent Summary Annual Report Reasonable time after distribution Substantiation of exemption for non-filing of Form years or permanent Delinquent Filer Voluntary Compliance Program information 8 years or permanent 7

8 Claims and Appeals Claims procedures complying with DOL regulations including forms, rules, guidelines, protocols, decision period documentation, and administrative processes Benefit claims, representative authorizations, ERISA decision making process, claim approval and payment, benefit denial, appeals (including decision making process), levels of reviews and appeals and claims substantiation for health FSAs. Financial Records Insured plan premium payments Plan benefit payments including health FSA Plans with no participant contributions and no trust Participant contributions and no trust Funded welfare plans with trusts Insurance rebates, refunds, dividends, demutualization and similar payments Stop loss policy payments applicable plus longer of 8 years for plans that file or would file claims information on Form 5500 or benefits statute of would file claims information on Form 5500 or benefits statute of 8 years would file claims information on Form 5500 or benefits statute of 8 years 8 years 8 years would file Schedule H or I with its Form 5500 or 6 years (ERISA fiduciary statute of ) or according to the employer s normal business records retention (if plan assets are not involved) would file Schedule H or I with its Form 5500 or 6 years (ERISA fiduciary statute of ) or according to the employer s normal business records retention (if plan assets are not involved) 8

9 Employee Retirement Income Security Act (ERISA) Health and Welfare Plans Financial Records (continued) Subrogation/reimbursement recoveries would file Schedule H or I with its Form 5500 or 6 years (ERISA fiduciary statute of ) or according to the employer s normal business records retention (if plan assets are not involved) Recovery of overpaid benefits would file Schedule H or I with its Form 5500 or 6 years (ERISA fiduciary statute of ) or according to the employer s normal business records retention (if plan assets are not involved) Administrative expenses would file Schedule H or I with its Form 5500 or 6 years (ERISA fiduciary statute of ) Plan assets in plan terminations 6 years (ERISA fiduciary statute of ) after filing final Form 5500 Plan asset issues in mergers and acquisitions Longer of benefits statute of or 6 years (ERISA fiduciary statute of ) following completion of business reorganization Fidelity Bond As long as bond is applicable plus 8 years Fiduciary insurance and premium payment records As long as policy is applicable plus 6 years 9

10 Non-ERISA Fringe Benefits Cafeteria Plan including Dependent Care Assistance Programs and HSAs Plan Document applicable plus longer of 8 years (if plan contains an ERISA benefit) or benefits statute of. Otherwise, longer of 5 years or benefits statute of Records relating to eligibility rules 5 years Identifying which individuals are employees As long as employee is eligible under plan plus longer of 5 years or benefit statute of limitation Elections and election changes Longer of 5 years (8 years if plan contains an ERISA benefit) or benefits statute of Plan summaries applicable plus longer of 8 years (if plan contains an ERISA benefit) or benefits statute of. Otherwise, longer of 5 years or benefits statute of Election materials including proof of HDHP coverage for an HSA 5 years (8 if plan contains an ERISA benefit) Claims substantiation for Dependent Care Longer of 5 years or benefit statute of Use of salary reductions Longer of 5 years (8 years if plan contains an ERISA benefit) or benefits statute of Nondiscrimination Testing including information on excludable employees, eligibility and benefit 5 years rules, and other necessary information 10

11 Health Savings Accounts (Outside of Cafeteria Plan) Payroll deduction election, election materials, election changes, proof of HDHP coverage 4 years Communications applicable plus longer of 5 years or benefits statute of. Use of payroll deductions 5 years Employer comparable contributions 5 years Plan Document Non-ERISA Fringe Benefits Qualified Transportation Plan eligibility, compensation reduction election, election materials, election changes Plan summaries Expense substantiation and financial records Plan Document Program summaries Expense substantiation and use of compensation reductions Qualified Educational Assistance applicable plus longer of 4 years or benefit statute of limitation 4 years applicable plus longer of 4 years or benefit statute of limitation 4 years applicable plus longer of 5 years or benefit statute of limitation applicable plus longer of 5 years or benefit statute of limitation 5 years 11

12 Initial (General) Notice COBRA Election notice, notice of unavailability, notice of early termination, any and all other notices required and communications If applicable, support showing employer exception from COBRA Determination of COBRA premium Communications with insurers regarding COBRA interpretations Policies and procedures Elections, receipt of premiums, qualified beneficiary s Medicare entitlement or other coverage Liabilities in mergers and acquisitions General PCE notice Special Enrollment notice HIPAA Notice of Privacy Practices Individual PCE determination notice (and evidence of creditable coverage supplied by participant) Certificates of creditable coverage Permanent or as long a document is applicable plus COBRA coverage statute of 3 year from date of qualified beneficiary s initial qualifying event plus COBRA coverage statute of 4 years after end of plan year for which exception is claimed plus COBRA coverage statute of COBRA coverage statute of Term of contract plus COBRA coverage statute of As long as applicable plus COBRA coverage statute of from date of qualified beneficiary s initial qualifying event plus COBRA coverage statute of from effective date of business reorganization (or dates of qualifying events occurring in connection with reorganization) plus COBRA coverage statute of benefits statute of benefits statute of 6 years from date created or last in effect Maximum possible PCE period; 18 months for late enrollees plus benefits statute of 6 years 12

13 HIPAA (continued) Individual rights: access to PHI, amend or correct PHI, accounting of PHI disclosures, use and disclosure restrictions, and alternative communications Privacy and security policies and procedures including sanctions for breach, mitigation, complaint procedures/complaints, and individual authorization regarding PHI Other Requirements Qualified Medical Child Support Order (QMCSOs) procedures Women s Health and Cancer Rights Act notices Medicare Part D notices of creditable coverage Mental Health Parity Act notice of reliance on 1% increased cost exemption HIPAA opt out by self funded non-federal governmental plan USERRA rights and obligations Litigation Records Plan litigation Self audit DOL investigations of ERISA plans; IRS audits of cafeteria plan Voluntary fiduciary correction program 6 years 6 years applicable plus the longer of 8 years or benefits statute of As long as documents are applicable plus benefits statute of benefits statute of As long as exemption is relied upon plus benefits statute of benefits statute of applicable plus benefits statute of Seek advice of counsel Seek advice of counsel Seek advice of counsel Seek advice of counsel 13

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