Federal Employment Law and Number of Employees Required for Compliance

Number of Employees

Record-keeping Requirements 

Affirmative Action
provisions of Executive Order No. 11,246:

Contract with federal government for $50,000 or more or a financial institution that is an issuing and paying agent for U.S. savings bonds in any amount.

150 or more

2 years (Retain plans for current year plus prior year): Written affirmation action plans, including the following: VETS-100 report, workforce analysis and documents, records relating to compliance with equal employment opportunity and nondiscrimination laws.

1 year: Employment applications, internal complaints and termination information for individuals with disabilities, disabled vets and vets of Vietnam era, including all records concerning actions in response to complaints (to be retained 1 year after termination).

Age Discrimination in Employment Act - Older Workers Benefit Protection Act

20 or more employees in 20 or more calendar weeks in the current or preceding calendar year.

1 year: Job applications, resumes, and other employment inquiries about existing or anticipated job openings, including the refusal to hire in response to an advertisement, employee benefit plans, such as pension and insurance plans, as well as copies of seniority systems and merit systems that are in writing, while the plan is in effect or one year after its termination, if the plan is not in writing, a memorandum outlining the plan terms, and the manner it was communicated to an employee and shall be maintained for like terms, test papers completed by applicants for any position, results of any physical exam, any advertisements or notices relating to job openings.

Americans with Disabilities Act

15 or more employees for each workday in each of 20 calendar weeks in the current or preceding calendar year

1 year: Denied employment applications, documents relating to requests for reasonable accommodations for hiring, promotion, demotion, transfer, layoff or termination decisions, pay rates, and terms of compensation one year from the date of making the document or the personnel decision, whichever is later, internal job postings – from the date the position is filled, job offers submitted to employment agencies or to a labor organization.

Consolidated Omnibus Budget Reconciliation Act (“COBRA”)

20 or more employees on a typical business day or 50 percent or more of the business days during the preceding calendar year.¹

6 years from date of entry: COBRA notices, acknowledgment that notices are received by employee or qualified beneficiaries, Medicare entitlement, documentation relating to COBRA continuation relating to gross misconduct.

Employee Polygraph Protection Act

All employers

3 years: Statements identifying the reasons for the investigation and basis for testing.

If the polygraph is conducted to investigate criminal conduct or misconduct involving a loss or injury or involving the manufacturing, distribution, or dispensing of controlled substances, records specifically identifying the loss or injury and nature of employees’ access to the person or property in question, written statement of the time and place of the examination and the employee’s right to consult with an attorney, list of persons to examine, copies of all opinions, reports, or records furnished to the employer by an examiner.

Employee Retirement Income Security Act

Any employer with an employee welfare benefit plan

6 years: Records relating to employee benefit plans, summary plan descriptions (SPDs), records supporting data in SPDs, notice of plan changes, and amendments or terminations and related welfare and pension reports.

Equal Pay Act

2 or more employees

2 years: The dates of promotion and pay increases, qualifications for employment, promotion, transfer, discharge, or other disciplinary decisions; wage rates, skill test certifications, job evaluations, job descriptions, merit systems, seniority systems, written job offers, employment contracts, collective bargaining agreements, and documents that explain the basis for wage differentials to employees of the opposite sex.

Fair and Accurate Credit Transaction Act

1 or more employees

2 years: Consumer reports and all documents containing information derived from consumer reports must be shredded after 2 years.

Fair Credit Reporting Act

1 or more employees

2 years: Credit decisions, consumer reports, documents related to consumer reports, adverse action letters, lending criteria used to make employment decisions, applications, pre-screened credit solicitations.

Fair Labor Standards Act

2 or more employees

3 years: Union agreements, training agreements, collective bargaining agreements and certificates, plan trusts, employment contracts, and written documents summarizing the terms or conditions of employment, sales and purchase records used to calculate commissions, including total volume of goods purchased or received, records of dollar volume of sales or business and total volume of goods promised or received during the weekly, quarterly, or monthly period if maintained during the normal course of business

2 years: Payroll records for full and part-time and temporary employees, including the following: employee’s name, gender, home address, including telephone number, birth date, if under 18 years of age, occupation, job title, SSN, hours and rate of pay; number of vacation days earned and dates vacation taken and paid, amount paid for each pay period, hours worked each day and total hours worked each work week, total wages paid for pay period including overtime, amount per hour, per day, per week, and commissioned sales, records of retroactive wage payments, additions or deductions to compensation, including wage assignments, records of retroactive payments, job evaluations and job descriptions.

Family and Medical Leave Act

50 or more employees

3 years: Payroll data, including the following: Employee’s name, address, and occupation; rate of pay, terms of compensation, daily and weekly hours worked or pay period, additions or deductions from wages and wages paid, dates leave is taken under the FMLA, hours taken for intermittent leave, employee notices of leave furnished to the employer, and written notices given to employees regarding FMLA leave, documents describing FMLA and policies regarding benefits and taking of paid and unpaid leave, premium payments for employee benefits, records of disputes regarding designation of leave, medical certificates, re-certifications, medical history, and other FMLA documents.

Federal Unemployment Tax: Employer who pays $1,500 in wages in any calendar quarter and employs 1 or more employees in each of same 20 days in the calendar year.

1 or more

4 years: Employee’s name, address, SSN, birth date, pay period, daily and weekly hours, overtime, deductions from pay, payment for fringe benefits, amounts and dates of wage payments, W-4 and W-4E forms, annual records showing total wages for employee and amount paid into the state employment fund.

5 years: Records supporting the determination and assessment of an employer’s unemployment contribution rate, beginning and ending dates for pay period, total wages paid per pay period, for each employee: name, SSN, address, dates s/he performed services, and place of employment, wages paid for each pay period and date of payment, monetary wages or cash value of renumeration period, amount of tips paid, special payments, wage rate and work hours.

Immigration Reform and Control Act

All employers

3 years after employee is hired or 1 year after termination, whichever is later: INS I-9 completed and signed by employee and employer and all supporting documents.

Internal Revenue Code and FICA

All employers who are required to file tax forms

4 years: Tax records including the following: amounts of wages subject to withholding, agreements with employee to withhold additional tax, actual taxes withheld and dates withheld, reason for any difference between total tax payments and actual tax payments, W-2s, W-3s, W-4s; 1099s

Occupational Safety and Health Act

10 or more employees

Employment duration plus 30 years: Medical exposure records of any current or former employees exposed to toxic substances or harmful physical agents in the workplace.

5 years: Records of occupational injuries, accidents and illness, whether fatal or nonfatal, which involve the loss of consciousness, restriction of work or motion, transfer to another job, or medical treatment, other than routine first aid. OSHA Form 300 log of work-related injuries and illnesses, OSHA Form 301 supplementary records of occupational injuries or illnesses; OSHA Form 300A or an equivalent document summarizing annual occupational injuries and illnesses for each workplace.

NOTE: For injuries or illnesses relating to an intimate body part or the reproductive system, sexual assault or injury, mental illness, hepatitis, tuberculosis, needle stick injuries, or injuries from blood contamination and infectious material, an employee may request that an employer must list “Privacy Concern Case” on the log, rather than the employee’s name. Employers must maintain a confidential list of case numbers and employees.

Online/Internet Application Records (Executive Order 11246):

Government contracts or subcontractors with 150 or more employees or a government contract in the amount of $150,000 or more

2 years: Any and all inquiries through the Internet which the employer considered the individual for a particular position, such as on-line resumes or internal resume databases, records identifying applicants contacted.

Internal Resume Database: Record of each database, the date added, the position for which each search of the database was made, and for each such search, the search criteria and date.

External Resume Database: Record of the position for which each search of the database was made, and for each search, the search criteria, the date of the search, and the resumes of the job seekers who met basic position qualifications.

Title VII

15 or more employees in 20 or more calendar weeks the current or preceding calendar year

1 year from date record made or employment action taken, whichever is later: Personnel records, including application forms or other records concerning hiring, promotion, demotion, transfer, layoff or termination, rates of pay and other compensation and selection for training and compensation.

Until final disposition of charge: All personnel records and documents relating to discrimination charge, including records for employees with similar positions.

EEO-1: Employers with employees over 100 employees must annually file an EEO-1, which reports numbers of minorities of employees compared to total workforce. The most recent report must be retained.