It has never been harder to be an employer than it is today, with the complexity of legislative and regulatory environment. Keeping up with, and complying with the myriad of federal, state and local laws and regulations is nearly impossible for any company, let alone small and mid-size employers (SMB)
Recordkeeping – What to Save / What to Shed / Where to Keep It / Who has Access
Here’s a look at the legal considerations relevant to various documents as well as some things to think about to ensure your electronic record retention system serves your needs in the event of employment litigation.
EEOC regulations (employment records generally). Several documents frequently maintained in hard copy form, including performance evaluations, attendance records/ timecards , dispensary records(warnings, employee announcements, handbook receipt, requests for employment verification, education certifications, applications, resumes, and orientation information, must be “preserved” in accordance with Equal Employment Opportunity Commission(EEOC) regulations. The regulations don’t require a particular form of preservation.
The EEOC “recommends” that race and ethnicity identification forms be kept separate from an employee’s basic personnel file because the personnel file is typically available to those who are responsible for personnel decisions. In addition, medical information, which can include documentation required by the Family and Medical Leave Act(FMLA), must be kept confidential and separate from an employee’s other personnel records. One way to address this concern is to house electronic race/ethnicity data and medical data in their with their own separate access protocols.
Employee Retirement Income Security Act (ERISA) regulations (benefits and COBRA records). Benefits records and Affordable Care Act(“ObamaCare”) COBRA-related mailings may be kept in electronic form if:
There are reasonable controls to ensure the integrity, accuracy, authenticity and reliability of the records kept in electronic form.
The electronic records are maintained in reasonable order, in a safe and accessible place, and in a manner that they may be readily inspected or examined.
The electronic records are readily convertible into legible and readable paper copy as may be needed to satisfy reporting and disclosure requirements.
The electronic recordkeeping system is not subject, in whole or in part, to any agreement or restriction that would directly or indirectly compromise or limit a person’s ability to comply with any reporting and disclosure requirement or any other obligation under Title I of ERISA.
Adequate records management practices are established and implemented.
IRS regulations (payroll records, tax returns, W-2s, 1099s, and supporting records). While the IRS permits the electronic retention of records (see Revenue Procedure 98-25), the U.S. Tax Court has ruled that “taxpayers are not relieved from the responsibility of retaining the hardcopy records from which the computer records were derived.” Accordingly, you shouldn’t rely exclusively on electronic copies of any records that may be needed in an audit directed at employment tax compliance. Kraus v. C.I.R., 85 T.C.M. (CCH) 750, 2003 WL 76111, at *7 (2003).
DOL regulations (FMLA and payroll documentation). Neither the FMLA nor the Fair Labor Standards Act(FMLA) requires a particular order or form of records. However, if they are stored electronically, records must be available for copying and transcription upon request by representatives of the US Department of Labor(DOL), and reproductions must be clear and identifiable. To the extent that FMLA documentation contains medical information, it must be maintained separately from other records in accordance with EEOC regulations.
OSHA regulations (medical records and injury reports). Records required by the Occupational Safety and Health Administration(OSHA) may be kept electronically provided the computer they are stored on can produce forms equivalent to OSHA’s forms when they are needed and the system meets specific regulatory requirements. First, employees and their representatives must have limited access to injury and illness records.
· Second, “when an authorized government representative asks for the records copies of the records must be provided within four (4) business hours.. X-rays must be preserved in their original state, however.
USCIS guidelines (I-9s). The U.S. Citizenship and Immigration Services (USCIS)
Federal law requires that every employer who recruits, refers for a fee, or hires an individual for employment in the U.S. must complete Form I-9, Employment Eligibility Verification. Form I-9 will help you verify your employee's identity and employment authorization.
The U.S. Citizenship and Immigration Services (USCIS) requires that electronic systems used for storing I-9 documentation have:
reasonable controls to ensure the integrity, accuracy, and reliability of the electronic storage system.
reasonable controls designed to prevent and detect the unauthorized or accidental creation of, addition to, alteration of, deletion of, or deterioration of an electronic Form I-9, including the electronic signature, if it’s used;
an inspection and quality assurance program that regularly evaluates the electronic generation or storage system and includes periodic checks of electronically stored I-9s, including the electronic signature, if it’s used;
a retrieval system that includes an indexing system that permits searches by any data element; and
The ability to reproduce legible paper copies.
These are some of the Federal Laws which you need to comply with daily, how does your staff deal with the Document requirements?
· Age Discrimination in Employment Act (“ADEA”)
· Americans with Disabilities Act (“ADA”)
· Title VII of the Civil Rights Act of 1964 as amended (Equal Employment Opportunity l
· Equal Pay Act (“EPA”)
· Consumer Credit Protection Act (“CCPA”)
· Fair Credit Reporting Act (“FCRA”)
· Consolidated Omnibus Budget Reconciliation Act (“COBRA”)
· Employee Retirement Income Security Act (“ERISA”)
· Family and Medical Leave Act (“FMLA”)
· Genetic Information Nondiscrimination Act (“GINA”)
· Patient Protection and Affordable Care Act (“PPACA” or the “Healthcare Reform Act”)
· Fair Labor Standards Act (“FLSA”)
· Immigration Reform and Control Act (“IRCA”)
· Occupational Safety and Health Act (“OSHA”)
· Uniform Services Employment and Reemployment Rights Act (“USERRA”)
· Worker Adjustment and Retraining Notification Act (“WARN”)
· State and local laws and regulations