In general, under state and federal laws, an employer is either required to or should maintain the following records on each employee:
To comply with the limitations period for claims under Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act
(ADEA), employers should keep and maintain documents related to hiring, accommodations, promotions, discipline, and discharge for at least one year. This list includes resumes, job applications, or any other form of employment inquiry submitted in response to any advertisement or solicitation of employment.
These documents may include:
- records pertaining to failure or refusal to hire;
- records relating to promotion, demotion, transfer, selection for training or apprenticeship, layoff, recall, or discharge;
- job orders submitted to an employment agency or labor organization for recruitment;
- examination and test papers completed by applicants for employment;
- results of physical examination considered in connection with a personnel action;
- advertisements, solicitations, or notices relating to job openings and other employment opportunities;
- requests for reasonable accommodation and what accommodation, if any, was granted.
1 year after plan terminates
To include benefit plans covered by The Employee Retirement Income Security Act of 1974 (ERISA), employers should keep benefit plan records including pension plans, insurance plans, seniority systems, and merit systems. Also, any set plans for advancement, layoff, or reinstatement which may be relevant to any claims of age or other discrimination should be preserved for at least one year after plan termination.
Information that may be necessary to respond to claims under the Fair Labor Standards Act (“FLSA”), as well as the Equal Pay Act (EPA), and thus should be kept for two years, includes any supplementary payroll records, wage rate tables, wages, salary, or overtime. Also, any records necessary to explain any wage rate differentials based on sex need to be preserved by employers for this period of time.
In consideration of the Age Discrimination in Employment Act and FLSA, employers should maintain payroll records listing the employee’s personal, occupational, and wage information. In consideration of the Family and Medical Leave Act (“FMLA”), employers should maintain records related to qualified family and medical leave including basic payroll and employee data, details regarding leave, copies of both employee and employer notices, applicable employer polices, documents verifying premium payments of employee benefits, and records of any disputes with employees over FMLA leave. Federal I-9 Employment Eligibility Verification forms must be kept for a minimum of three years or one year after the worker’s employment terminates, whichever period is longer.
The Federal Insurance Contribution Act (FICA) and the Federal Unemployment Tax Act (FUTA) require that tax records related to income tax withholdings be kept for four years.
Employers are required by Occupational Safety and Health Act (“OSHA”) to keep occupational illness or injury records for five years after the year in which the injury was sustained or treatment ended, whichever period is longer.
Records of employee exposure to toxic substances are required by OSHA to be kept for thirty years.
Under West Virginia state law, W.Va. Code § 21-1B-4, employers and associated business entities must make and keep records of employed personnel including records of proof of the legal eligibility to work. These records must be preserved pursuant to provisions of West Virginia law, which states that “[e]very employer subject to the provisions of this article shall make or cause to be made, and shall keep and preserve at his place of business for a period of two years, a written record or records of the name and address of each of his employees as herein defined, his rate of pay, hours of employment, payroll deductions, and amount paid him for each pay period.” W.Va. Code § 21-5C-5.