Federal Pre employment
screening Record Retention
The 2005 Federal Records Retention
Chart has been updated to include
many other business record retention periods.
There has always been some confusion
among employers concerning the legal requirements for record keeping
and retention of employee files and other employment-related records.
Not only do various federal agencies have their own record retention
requirements, but individual states also have requirements that have
to be followed. Some of the requirements apply to most employers,
while others apply primarily to government contractors and
subcontractors. Many of these requirements are dependent on the number
of employees or the purposes for which the record keeping is designed.
This article will address record
keeping requirements under federal laws and provide definite
guidelines that comply with current requirements. A chart is available
upon request as a reference for HR practitioners regarding what
records must be kept under each federal law, the retention period for
those records and the applicability of each federal law.
and Compensation Records
A number of federal laws, including
the Federal Insurance Contribution Act (FICA), the Federal
Unemployment Tax (FUTA) and Federal Income Tax Withholding regulations
require that employee records related to mandatory federal taxes be
retained for at least four years. These records would include basic
employee demographic records (such as name, address, social security
number, gender, date of birth, occupation and job classification)
along with records of total compensation, tax forms, records of hours
worked (straight time and overtime), and payments to annuity, pension,
accident, health, or other fringe benefit plans, and all wages subject
to withholding and the actual taxes withheld from wages. These records
must be retained for four years.
The Equal Pay Act and the Fair Labor
Standards Act both require retention of payroll record information for
Federal contractors and subcontracts
are also subject to the Davis-Bacon Act, the Service Contract Act and
the Walsh-Healy Public Contracts Act, all of which require retention
of employee demographic information and compensation records for a
period of three years.
Civil Rights Act of 1964, Title VII and the Americans with
Disabilities Act (ADA) , employers with at least fifteen employees
must retain applications and other personnel records relating to
hires, rehires, tests used in employment, promotion, transfers,
demotions, selection for training, layoff, recall, terminations or
discharge, for one year from making the record or taking the personnel
action. The Age Discrimination in Employment Act (ADEA) requires the
same length of retention for the same employment related records for
employers with twenty or more employees. In addition, Title VII and
the ADA require that basic employee demographic data, pay rates, and
weekly compensation records be retained for at least one year. The
same information is required to be retained under ADEA for at least
The Immigration Reform and Control
Act (IRCA) requires that the Employee Eligibility Verification Form
(INS Form I-9) be maintained for three years after date of hire or one
year after date of termination, whichever is later. Since they must be
available for inspection during an audit from either the Immigration &
Naturalization Service or Department of Labor, it is advisable to keep
I-9 forms separate from the employee s personnel file.
The Employee Polygraph Protection Act
requires polygraph test results and records be retained for at least
three years under the Employee Polygraph Protection Act.
Federal contractors and
subcontractors are subject to Executive Order 11246, the Vietnam Era
Veterans Readjustment Act and the Rehabilitation Act of 1973. These
laws require that affirmative action plans be prepared and annually
updated. At this time, there is no requirement to retain expired
plans. However, the OFCCP proposed regulations on May 21, 1996 that
would require the retention of the previous year AAP.
The Uniform Guidelines on Employee
Selection Procedures (UGESP) provide guidance for employers subject to
Title VII or Executive Order 11246. These guidelines require the
collection of data regarding applicants and employees race and sex.
Information regarding the identity of an employee s race and sex as
well as veteran and disabled status should be maintained separate from
the employee s personnel file to avoid personnel decisions being made
on the basis of these factors.
In addition, the USESP require
records showing the impact of employment selection processes on
minorities and females. Information with respect to employment
transactions (i.e., records with respect to applicants, offers, hires,
rehires, tests used in employment, promotions, transfers, demotions,
selection for training, layoff, recall, terminations or discharge) be
retained. During a compliance review of a company s affirmative action
program, the Office of Federal Contract Compliance Programs (OFCCP)
may seek summaries of personnel transactions for up to two years prior
to the commencement of the audit.
Health and Safety
The Employee Retirement Income
Security Act (ERISA) requires that employers maintain related records
including Summary Plan Descriptions, Annual Reports and Reports of
Plan Termination for a minimum of six years.
The Family and Medical Leave Act (FMLA)
requires the retention of certain records with respect to payroll and
demographic information as well as information related to the
individual employee s leave for a period of three years. Please refer
to the chart accompanying this paper.
The Occupational Safety and Health
Act requires that records of job-related injuries and illnesses be
kept for five years. Employers are also required to fill out and post
an annual summary (OSHA No. 200-S). In addition, records related to
medical exams along with toxic substances and blood-borne pathogen
exposure must be retained for thirty years after termination of
While this paper discusses federal
record keeping and retention requirements, you are encouraged to
investigate individual state requirements in those states where your
company does business. Many states have laws that parallel the federal
statutes. Be aware that many states have laws regulating employee
access to their personnel files. It is important that you are aware of
these state laws.
In reviewing the accompanying chart,
you will notice that the same or similar records are often required
under more than one law. However, the period of retention for this
information may vary. If that is the case, you are advised to retain
the information for the longer period of time.
It is also advisable to establish a
system for auditing your company s record keeping, including personnel
files, as well as a consistent program for record destruction.
However, be cautious that even with such a standard practice in place,
when a discrimination charge or lawsuit is filed, all records relevant
to the charge must be kept until "final disposition" of the charge or
To request a copy of the
Federal Records Retention Chart, request below.
discuss a workshop, call (228) 875-8275 or e-mail