Last week, the U.S. Department of Labor sued the California-based tele-communications provider DirecTV for alleged minimum wage, overtime and record-keeping violations. The DOL claims they found that DirectTV paid many employees on a piece-rate basis, resulting in an hourly rate falling below the minimum wage. They are also accused of failing to keep accurate time cards and other documentation errors.
While many employers may be familiar with minimum wage guidelines, many are unfamiliar with the complex laws governing employee documentation and record-keeping. More often than you would think, employers that find themselves in legal troubles could have prevented a great deal of them by keeping better employee files.
Below we provide a brief outline to some of the key guidelines governing this area of the law.
Record Keeping Requirements: The Personnel File
Employee personnel files contain general information about the individual. This can include their job description, any training they received, and overall interactions in the employee life cycle.
The following records must be kept for a period of 2 years, DURING the employment of the individual:
• Hiring Records
• Applications, resumes
• Pre-employment tests, reference checks
• Evaluations of interviews
• Ads for open positions (external)
• Internal postings of open positions
• Job orders submitted to employment agencies
• Applicant file or personnel files
Even after the end of the employment relationship, the following files must be kept for an additional 2 year period in secured location:
• Employee Personnel Files
• Job title, description and classification
• Offer letter
• Promotions, demotions, and performance evaluations
• Training, testing including certificates
• Disciplinary notices, attendance records
• Discharge, transfer, lay-off and recall files
• Acknowledgments of policy, handbook
• Request for reasonable accommodations
There are additional documents that must be maintained for a longer period of time. Examples include:
- Payroll records, time cards, and union contracts – 4 years
- Workers’ compensation records, injury reports, OSHA documents – 5 years
- Employee benefits records, COBRA, ERISA documents – 6 years
If record keeping defines the process of maintaining information about the employee them self, documentation is vital in demonstrating proof of actions and prepares a defense against any potential future employment claims. To work effectively, documentation must be detailed, focused on the facts and signed whenever appropriate. Examples can include performance appraisals, written warnings, or any type of formal job performance evaluation. These documents should be signed by both the supervisor and employees.
In the event documentation of an incident is necessary, below is a short list of some specific items that must be included in your paperwork:
- Name(s) of employee(s) involved in the event that warranted documentation.
- Date and time
- Type of violation/event observed
- Specific details
- Photocopy of any evidence. For example, with time cards, this can include failure to sign time card or the manipulation of a time card. Additionally, documents like a doctor’s note and requests for leaves may be evidence that proves useful to photocopy and retain.
Accurate employee record keeping and documentation is a complex area of employment law that is often misunderstand, or simply overlooked, by a great deal of employers. If you have any questions or concerns regarding your documentation or record keeping procedures, please feel free to contact us. CPEhr’s Human Resources Consulting team is available to work on-site to conduct a complete audit of your documentation and record keeping practices.