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What An Employer Should Know about Record Retention.

One important aspect of every business is know what Employment documents must be
retained and for how long. Documents which require special care include items such as job postings,
employment applications, resumes, reference checks, testing data, personnel files, wage and hour
records, payroll records, and disciplinary files. While it feels good to purge those documents when
the filing cabinets get stuffed to their limits, there are many federal, state, and local laws and
regulations require that certain personnel records, whether stored electronically or on paper, be kept
for a specified period of time and even long after the termination of an worker’s employment.
Because of this, it’s important for your HR function to become familiar with all relevant record
retention laws. While the list of laws and regulations dictating the minimum record retention periods
is quite long and below are just some of the laws and types of records you need to retain.

New York Record Retention Requirements

6 Years – Payroll Records. New York State imposes record retention requirements
concerning, among other things, wage payments, minimum wages, and hours worked. Under the
New York State Labor Law, you must maintain accurate payroll records for at least six years. The
are records of an employee’s hours worked, gross wages, deductions, and net wages. The statute
substantially overlaps with the requirements of the federal Fair Labor Standards Act (FLSA). Also,
there’s a six-year statute of limitations for lawsuits arising under the state labor statute.

4 Years – Workers’ Compensation. Employers covered by the New York Workers’
Compensation Law must keep four years of payroll records showing the number of employees
working and their wages. You’re also required to keep for 18 years, a record of all injuries, fatal or
otherwise, sustained by an employee in the course of employment. The records should include the
worker’s name and occupation; the time, place, and date of the injury; and a description of how the
injury occurred.

3+ Years – NYC Human Rights Law. Once the New York City Commission on Human
Rights (NYCCHR) initiates its an investigation or has commenced one in response to a filed
complaint, it has the power to demand that you continue to make and preserve records made and kept
in the ordinary course of business during the preceding year. NYCCHR Demands are effective when
served and remain in effect until the proceedings relating to a filed complaint are terminated or a
civil lawsuit is commenced. If no charge is filed and no civil lawsuit is commenced, the demand
expires two years from the date it was served. The NYCCHR also has can subpoena all records that
relate to an investigation into an unlawful discriminatory practice. The statute of limitations is one
year for a worker to file a discrimination charge with the NYCCHR and three years to file a lawsuit
in court.

Federal Record Retention Requirements

1 Year – Under Title VII of the Civil Rights Act of 1964 and the Americans with
Disabilities Act
, covered employers must retain personnel or employment records for a period of
one year from the date the record was made or from when the personnel action was taken (e.g.,
termination), whichever is later. The applicable records include application forms; job
advertisements; documentation concerning hiring, promotion, demotion, transfer, layoff, or
termination; payroll information; job descriptions; employment handbooks; requests for reasonable
accommodations; and employee evaluations.

3 Years – Under the Age Discrimination in Employment Act, covered employers must
retain for three years payroll or other records containing an employee’s name, address, date of birth,
occupation, rate of pay, and compensation earned per week. For a period of one year from the date
a personnel action, you must retain personnel and/or employment records relating to (1) job
applications, resumes, job advertisements, and records pertaining to failure or refusal to hire; (2)
promotion, demotion, transfer, selection for training, layoff, recall, or discharge; and (3) job orders
submitted to employment agencies or unions.

Employee benefit plans and written seniority or merit rating systems must be retained for the
full period of the plan or system in effect plus one year after termination.

3+ Years – US Fair Labor Standards Act (“FLSA”). The federal wage and hour law
requires retention of payroll records, rates of pay, and individual contractors’ collective bargaining
agreements for the term of an employee’s employment plus three years. Records on which wage
computations are based must be retained for two years, including time sheets, wage rate tables, work
and time schedules, records of additions to or deductions from wages, and documentation of the
basis for payment of any wage difference to employees of different sexes.
3 Years – Family and Medical Leave Act (“FMLA”) Covered employers must make, keep,
and preserve the same records under the FMLA as those required by federal wage and hour law for
three years. In addition to basic payroll data, the dates and hours (if less than full days) of FMLA
leave taken, copies of employer notices, documents describing employee leave benefits and policies,
premium payment of employee benefits, and records of disputes with employees over FMLA
benefits must be retained for three years.

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