RECORD RETENTION REQUIREMENTS SUMMARY GUIDE Joshua T. Natzel Lindquist & Vennum PLLP (612) [email protected]

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1 RECORD RETENTION REQUIREMENTS SUMMARY GUIDE 2012 Joshua T. Natzel Lindquist & Vennum PLLP (612) I. Documents Related to Recruitment Type of Record Retention Period Statute Job orders submitted by the employer to employment agencies, or labor organizations for recruitment of employees Job advertisements and notices to the public or to employees regarding job openings, training programs, promotions, and opportunities for overtime Criteria for selection for apprenticeship programs in recognized trade or craft; chronological list of all applicants names, addresses, dates of application, sex, minority group class (race or national original); and any test papers or interview records on which hiring decisions were made Any additional record made solely for the purpose of completing the EEO-2 Apprenticeship Information Report Two years or period of chosen applicant s apprenticeship, whichever is longer One year from the due date of the report 42 U.S.C. 2000e-8(c); 29 C.F.R &.21 (Title VII of the Civil Rights Act of 1964) 42 U.S.C. 2000e-8(c); 29 C.F.R &.21 (Title VII of the Civil Rights Act of 1964) 1

2 II. Documents Related to Employee Selection Hiring documents, including job applications, resumes, job inquiries, and records of refusals to hire Promotion, demotion, transfer, selection for training, layoff, recall or discharge Test papers and results from employment test Results in physical examinations All personnel or employment records including application forms, resumes, other hiring records; records regarding promotion, demotion, transfer, layoff, discharge, pay rates, or other compensation terms INS Form I-9 Employment Eligibility Verification Form Employer Information Report EEO-I Form Federal Affirmative Action Program: Employers with 50 or more employees that obtain a Federal contract for goods or services of $50,000 or more must maintain an affirmative action plan One year from date records made or taken, whichever is later after date of hire or one year after date of termination, whichever is later Copy of most recent report for each reporting unit must always be retained Program must be reviewed and updated annually 29 U.S.C. 62; 29 C.F.R. 29 U.S.C. 626;29 C.F.R. 42 U.S.C. 2000e-8(c); 29 C.F.R (Title VII of the Civil Rights Act of 1964) 8 U.S.C. 1324a(b)(3) (Immigration and Nationality Act) 42 U.S.C. 2000e-8(c); 29 C.F.R (Title VII of the Civil Rights Act of 1964) Executive Order No ; 41 C.F.R. 60 Minnesota Affirmative Action Program: Employers with 40 or more full-time employees that obtain a Minnesota state contract for goods or services in excess of $100,000 must maintain an affirmative action plan Program must be submitted every two years for renewal Minn. Stat. 363A.36 2

3 III. Documents Related to Compensation of Employees Payroll or other records containing name, address, birth date, occupation, pay rate and weekly compensation Payroll records, collective bargaining agreements and any changes to such agreements, individual contracts, written agreements under the FLSA, sales and purchase records, and certificates and notices of the Wage and Hour Administrator Supplementary basic records including basic employment and earnings records; wage rate tables used to calculate earnings, wages, salary, or overtime pay; work-time schedules; order, shipping and billing records, records of additions to or deductions from wages paid; records used for determining costs Certificates of Age Payroll records including name, address, social security number, job category, pay rate, weekly number of hours worked, deductions made, and wages paid Two years Until termination of employment from completion of Government contract 29 U.S.C. 211(c); 29 C.F.R (Fair Labor Standards Act and National Labor Relations Act) 29 U.S.C. 211(c); 29 C.F.R and (Fair Labor Standards Act and National Labor Relations Act) 29 U.S.C. 211(c); 29 C.F.R (b)(1) (Fair Labor Standards Act and National Labor Relations Act) 40 U.S.C. 276a; 29 C.F.R. 5.5(a)(3) (Davis-Bacon Act) Name, address, and occupation of each employee Minn. Stat (1) (Minnesota Fair Labor Standards Act) Rate of pay and amount paid each pay period to each employee Hours worked each day and each work week for each employee Minn. Stat (2) (Minnesota Fair Labor Standards Act) Minn. Stat (3) (Minnesota Fair Labor Standards Act) 3

4 IV. Documents Related to Employee Benefit Plans Employee benefit plan governing documents, summary plan description, and notices Records sufficient to document information required by retirement and welfare plan Form 5500 annual reporting, such as: vesting and distribution requirements, coverage and nondiscrimination testing data, benefit claims filed and paid or denied, trust accounting statements of account balances and investment performance, participants elections and deferrals, enrollment materials, requests for reimbursements, vouchers, worksheets, receipts, and applicable resolutions. Information and records sufficient to determine benefits due or which may become due to individual participants including information sufficient to determine quarterly or annual benefit statements Employee benefit plan seniority and merit systems (e.g., early retirement windows, age-based premiums) Evidence of fiduciary actions (Administrator, Trustee, Employer) relating to benefit plans Documents relating to HIPAA privacy records COBRA Notices Indefinitely Six years after the Form 5500 filing date, or would have been filed but for an exemption or simplified reporting requirement No retention period is specified, but it is generally recommended that records be maintained 6 years after a participant s benefit determination and payment Duration of plan and for at least one year after plan's termination Indefinitely Six years from the date the document is created or the date it was last in effect, whichever is later No retention period is specified, but it is generally recommended that records be maintained for six years from the date notice is given. 29 U.S.C (Employee Retirement Income Security Act of 1974); 26 U.S.C (Internal Revenue Code) 29 U.S.C (Employee Retirement Income Security Act of 1974); ERISA Opinion Letter 82-40A (Aug. 10, 1982) 29 U.S.C (Employee Retirement Income Security Act of 1974) 29 U.S.C (Employee Retirement Income Security Act of 1974) 45 CFR (j)(2) (Health Insurance Portability and Accountability Act of 1996) Consolidated Omnibus Budget Reconciliation Act of

5 V. Documents Relating to Employee Exposure to Toxic Substances OSHA Form 300: Log and summary of occupational injuries and illnesses OSHA Form 301: Supplemental record for each occupational injury or illness OSHA Form 300A: Annual summary of occupational injuries and illnesses Records of employee medical examinations Five years following end of year to which records relate Five years following end of year to which records relate Five years following end of year to which records relate Duration of employment plus thirty years, unless OSHA requirements provide otherwise 29 U.S.C. 657; 29 C.F.R ; (Occupational 29 U.S.C. 657; 29 C.F.R (Occupational 29 U.S.C. 657; 29 C.F.R (Occupational 29 U.S.C. 657; 29 C.F.R (Occupational Records of employee exposure to hazardous materials Thirty years 29 U.S.C. 657; 29 C.F.R (Occupational Analysis using employee medical or exposure records Thirty years 29 U.S.C. 657; 29 C.F.R (Occupational Manufacturers, processors, or distributors of any chemical substance must retain records of significant adverse reactions to the health of employees Manufacturers, processors, or distributors of any chemical substance must retain records of any significant adverse reaction to health or the environment Thirty years from date such adverse reaction first reported to or known by person maintaining record Five years from date first reported to or known by person maintaining the record 15 U.S.C (Toxic Substances Control Act) 15 U.S.C (Toxic Substances Control Act) 5

6 VI. Documents Related to Drug and Alcohol Testing Records of driver alcohol test results indicating an alcohol concentration of 0.02 or greater, records of driver verified positive controlled substances test results, documentation of refusals to take required alcohol and/or controlled substances tests; driver evaluation and referrals Equipment calibration documentation, records related to administration of alcohol and controlled substances testing programs, copy of annual calendar year summary of testing results Records related to the alcohol and controlled substances collection process, including collection logbooks; documents relating to the random selection process, reasonable suspicion testing, post-accident testing; documents verifying employee s inability to provide breath for testing Five years 49 C.F.R (Controlled Substances and Five years 49 C.F.R (Controlled Substances and Two years 49 C.F.R (Controlled Substances and Records related to negative and cancelled test results One year 49 C.F.R (Controlled substances and Records related to the education and training of breath alcohol technicians, screening test technicians, supervisors, and drivers. For the period during which the individual performs the functions which require training and for two years after ceasing to perform those functions 49 C.F.R (Controlled Substances and 6

7 VII. Documents Related to Discrimination Charge Personnel records concerning any discrimination charge brought by any agency or individual (e.g., records about charging party and all other employees holding similar positions, application forms, or test papers completed by all applicants for same position) Until final disposition 42 U.S.C. 2000e-8(c); 29 C.F.R (Title VII of the Civil Rights Act of 1964) In action brought against employer, any personnel records concerning employee or applicant Until final disposition 29 U.S.C. 626; 29 C.F.R. VIII. Documents Related to Disability Discrimination Charges Records concerning complaints of handicap discrimination, (in programs and activities receiving or benefiting from federal financial assistance) and relevant employment records of charging party and employees in similar positions 29 U.S.C. 793; 29 C.F.R (Rehabilitation Act of 1973) Any personnel or employment record made or kept by an employer concerning an individual with a disability (e.g., request for reasonable accommodation, application forms, and other records having to do with hiring, promotion, demotion, transfer, layoff or termination, rates of pay or compensation, and selection for training or apprenticeship) Personnel records of an individual whose employment has been involuntarily terminated Personnel records concerning a charge of discrimination filed or an action brought against an employer under Title VII or the ADA One year from the date the record is made or the involved is taken, whichever occurs later One year from the date of the termination Until final disposition of the charge or the action (the date of expiration of the statutory period within which the aggrieved person may bring an action in U.S. District Court or the date such litigation is terminated) 29 C.F.R (Americans with Disabilities Act) 29 C.F.R (Americans with Disabilities Act) 29 C.F.R (Americans with Disabilities Act) 7

8 IX. Documents Related to Employee Leaves of Absence Basic payroll and identifying employee data, including name, address, occupation, rate of pay and terms of compensation, daily and weekly hours worked per pay period and additions or deductions from wages All records pertaining to compliance with FMLA s leave requirements, including dates and hours (if less than a full day) of FMLA leave; copies of employer notices, documents describing premium payments and employee benefits and records of disputes with employees over FMLA benefits Documents describing FMLA notices and copies of employer s FMLA policy 29 U.S.C. 2616; 29 C.F.R (Family and Medical Leave Act of 1993) 29 U.S.C. 2616; 29 C.F.R (Family and Medical Leave Act of 1993) 29 U.S.C. 2616; 29 C.F.R (Family and Medical Leave Act of 1993) 8