1. Recordkeeping Compliance
Employers can reduce liability by keeping proper records. For instance, documentation of
performance issues prior to termination can help avoid a wrongful discharge lawsuit altogether.
And a properly maintained personnel file should assist an employer in defending a lawsuit.
Federal enforcement agencies routinely review employment records in employment-related
complaints, so recordkeeping in conformity with requirements imposed on employers under
federal laws is critical. With the increased use of electronic records, compliant document
destruction and retention policies are even more essential. The following summarizes key
recordkeeping requirements for employers.
Title VII
An employer with 15 or more employees must maintain hiring records, documentation of job
status changes -- promotion, demotion, transfer, layoff or termination, etc. -- rates of pay or other
terms of compensation, and selection for training or apprenticeship. These records should be
maintained for the length of employment plus at least two years.
If an action is brought against an employer, the employer must maintain, until final disposition of
the action, records related to the complainant and employees with similar positions, or, in a
failure to hire case, application forms or test papers completed by unsuccessful applicants and by
all other candidates for the same position.
Employers with 100 or more employees must file annually and maintain a copy of Form EEO-1,
Employer Identification Report. A copy of the most recent report filed for each reporting unit
must always be retained at each unit, company, or division headquarters.
Age Discrimination in Employment Act
Under the ADEA, employers of 20 or more employees must maintain payroll or other records,
including each employee’s name, address, date of birth, occupation, rate of pay and weekly
compensation, for three years.
Employers must also maintain the same personnel and employment records required for Title
VII, including records relating to (1) job applications, resumes or other replies to job
advertisements, records pertaining to failure or refusal to hire; (2) promotion, demotion, transfer,
selection for training, layoff, recall or discharge; (3) job orders submitted to employment
agencies or unions; (4) test papers in connection with employee-administered aptitude or other
employment tests; (5) physical examination results; and (6) job advertisements or internal job
postings, training opportunities, or opportunities for overtime..
This Act requires employers to maintain records on employee benefit plans, written seniority,
and merit rating systems as well. The records are to be maintained for the full period that the
plan or system is in effect, plus one year after termination of the plan.
Releases and waivers of ADEA claims pursuant to the Older Workers Benefit Protection Act
must be retained for one year after termination.

2. Fair Labor Standards Act
Under the FLSA, employers must keep for three years the basic records containing employees’
information, payroll, individual contracts or collective bargaining agreements, applicable
certificates and notices of wage-hour administrator, sales and purchase records. Employers must
also maintain supplementary records, including basic employment and earning records; wage
rate tables; work time schedules; order, shipping and billing records; records of additions to or
deductions from wages paid; and documentation of basis for the payment of any wage
differential to employees of opposite sex in the same position. The Equal Pay Act requires
retention of records documenting wage differentials on the basis of gender for two years.
However, the Lilly Ledbetter Fair Pay Act requires that records supporting pay decisions and job
classifications on the basis of any protected characteristic must be maintained for a much longer
period, to justify any pay disparity. Employers need to give significant attention to decision-
making and recordkeeping policies in this regard.
Family Medical Leave Act
Covered employers (those with 50 or more employees) must maintain records with dates of
FMLA leave (or hours, if taken in less than full-day increments), copies of notices furnished to
the employer or by the employer to the employee, premium payments made by employees on
FMLA leave, requests for FMLA leave, and records of any disputes regarding designation of
leave as FMLA. These records, as well as FLSA records, must be kept for no less than three
years and made available to Department of Labor inspectors upon request. Employers should
also maintain documents describing employee benefits or policies regarding paid or unpaid
leave. Employers should be aware that portions of FMLA records containing medical records or
information are subject to the Americans with Disabilities Act and the ADA Amendments Act
and the Health Insurance Portability and Accountability Act and must be maintained separately
from personnel files, with restricted access.
Record Number of Years to Retain
Accommodation Requests for Disabilities 1
and Applications for Disability Benefits
Application Materials for Individuals not 1
Hired
Apprenticeship Records 1 year from the later of the date application
is received or apprenticeship ends
EEO-1 Reports 1
Employee Benefit Plans 2 years following termination of plan
Employee Exposure Records / OSHA 30 years following termination of
Required Medical Exam Records employment
Employment Advertisements 1
ERISA – Records supporting data in SPDs 6
and Welfare and Pension Records
2

3. FMLA Records1 3
FUTA Records 2
Hiring Records, Job Status Changes, Length of employment plus 2 years to
Compensation Records comply with Title VII
3 years to comply with ADEA
1 year to comply with ADA (15
employees)
I-9 Forms2 The later of 3 years after employment
begins or 1 year after termination of
employment
IRS / FICA Records 4 years after filing of return
OSHA logs, Annual Summary, and Form 5
301
OWBPA Releases and Waivers 1 year after date of termination of
employment
Payroll Records 3
Personnel Files 6 years after date of termination of
employment
Polygraph Records 3 years from date of test
Wage Differential Records Ledbetter
1
Do not keep medical records with employee personnel files. Employers must maintain the files in compliance with
the ADA, ADAAA, and HIPAA and access to files with medical information should be severely restricted. A
supervisor should not have access to information about an employee’s age, health, medical conditions, disability,
genetic information or condition, or status of worker’s compensation claim, for example, or the employee may have
a retaliation or discrimination claim based simply on access.
2
Do not keep I-9 (employee eligibility verification) forms with employee personnel files. A best practice is to keep
separate all employees’ I-9 forms, maintained in one location, to comply with the law and to protect employees’
personal information should the government inspect the forms.
3