How Long HR Must Keep Employee Files
Federal Laws and State Laws May Differ
One of the big things about Human Resources is that we have tons of paperwork. Tons and tons and tons. Granted, a lot of it is electronic these days, but the principle remains. HR does record keeping. And, we need to keep those records, but for how long?
Here are basic guidelines for HR record keeping. Remember, though, that state laws may vary from these guidelines. If state laws and Federal laws conflict, always keep the records based on whichever requirement is longer. It is better to keep something for too long than not long enough.
You need to save all of those resumes, interview notes, applications, and job postings, and even a record of your searches through your applicant tracking system for one year after the decision to make a job offer was made. So, if you interview an applicant, and the whole process drags on for three months, it's not until the final hiring decision is made that the clock starts ticking.
Why do you have to do this? If anyone ever questions your hiring decision, you will need to show that you were not discriminating illegally in any way, shape, or form. Laws such as the Americans with Disabilities Act, Title VII, and many others require you to demonstrate you're in compliance. Maintaining these records helps you do this.
Drug Test Records
If you require drug testing for pre-employment, it's part of the hiring record, and you should keep a copy of the results for one year. If you do additional drug testing, whether due to an incident at work or as part of a random check, you also need to maintain these records for one year. However, if you are subject to Department of Transportation regulations, then the minimum time frame for drug test records is five years.
The law requires you to maintain these records for three years, but recent lawsuits mean it would be smarter for you to keep them for longer. You want to maintain a record of how much each employee was paid, and how many hours they worked for their entire tenure at your company. Keep your records for at least five years after the employee leaves, regardless of reason.
For exempt employees, of course, you don't need to maintain time records, as their pay is the same regardless of the number of hours worked. However, if you ever misclassified an employee as exempt when she should have been non-exempt, these hours worked records can guide you for paying owed overtime. Make sure that you include how the company calculated pay. For instance, you need to track whether it was straight salary, salary plus commission, overtime, piecework, or straight hourly pay.
You need to do this not only for pay and tax questions but many other decisions rely on the number of hours worked. For instance, eligibility for FMLA is dependent on the number of hours worked in a year. If you have a part-time exempt employee, you might want to consider requiring time recording to determine FMLA eligibility. You also need to be able to prove that you paid your workers for all of the hours they worked.
Maintain the employee I-9 Form, stored separately from your personnel records, for three years after you hire the employee and for one year following employment termination, whichever is later.
Health/Pension Benefits Information
You need to keep the records of your plans for all of your benefits for a minimum of six years. The courts have held that if an employee sues you, saying that he or she deserves a higher pension, for instance, it's the employer's responsibility to prove that they don't owe more, not the employee's responsibility to prove that they do. Keep all of those Summary Plan Descriptions.
If you have former employees who are eligible for COBRA, extending their health benefits, you should also keep those records for six years just to be safe. The law doesn't specify retention, but since this could apply under the Employee Retirement Income Security Act (ERISA), this law requires retention for six years. To be on the safe side, don't throw those records out.
When an employee requests FMLA, you need to keep that paper trail, even if you deny the leave for three years. Make sure that you keep track of each employee's leave - when it began and how much time is used. If the employee has intermittent FMLA, make sure you track every leave and document the number of hours used. Dates and the number of hours should be documented. Remember, intermittent leave can be used for a few hours in a day, or a few days in a week. Document it all and keep those records.
Remember, this is not a comprehensive list and applies only to Federal statutes. You may be subject to additional record retention laws if, for instance, you are a Federal contractor or your state has different standards. When in doubt, don't throw it out.
You can access additional resources about record keeping and mandatory reporting at the Society of Human Resource Management (SHRM).
Disclaimer: Please note that the information provided, while authoritative, is not guaranteed for accuracy and legality. The site is read by a worldwide audience, and employment laws and regulations vary from state to state and country to country. Please seek legal assistance, or assistance from State, Federal, or International governmental resources, to make certain your legal interpretation and decisions are correct for your location. This information is for guidance, ideas, and assistance.