Why It’s Important to Meet Requirements for Record Keeping

Requirements for Record Keeping?

You might think it will never happen to you, but the reality is that many businesses will face charges from an employee. Most often those charges are based on perceived discrimination. It’s important that, as a business owner, you meet the requirements for record keeping as required by the U.S. Equal Employment Opportunity Commission (EEOC). The EOCC sets the standards for Requirements for Record Keeping.

Here is a list of types of discrimination not allowed in the workplace according to the EEOC:

  • Age
  • Disability
  • Equal Pay/Compensation
  • Genetic Information
  • Harassment
  • National Origin
  • Pregnancy
  • Race/Color
  • Religion
  • Retaliation
  • Sex
  • Sexual Harassment

The EEOC regulations require that employers keep all personnel or employment records for one year. If an employee is involuntarily terminated, (fired) you must retain his or her personnel records for one year from the date the employee was terminated. Employers must also keep any employee benefit plan (such as pension and insurance plans) and any written seniority or merit system for the full period the plan or system is in effect for at least one year after its termination.

Payroll records:

Payroll records must be kept on file for three years as required by the ADEA and the Fair Labor Standards Act (FLSA). In addition, employers must keep all records (including wage rates, job evaluations, seniority and merit systems, and collective bargaining agreements) that explain the basis for paying different wages to employees of opposite sexes in the same establishment for at least two years.

Even if no charges are ever filed, these requirements apply to all employers covered by Federal anti-discrimination laws.

When a Charge Has Been Filed Against You:

When an EEOC charge has been filed against your company, be prepared. Retain all personnel or employment records relating to the issues that are under investigation based on the charge being levied. This means keeping records on both the person or person being charged and the person or persons alleging a grievance against them. Include record keeping for all other employees holding the same position or anyone seeking similar positions in the company. This way you have a clear record of anyone that might be in a position to file similar grievances.

Once a charge is filed, these records must be kept until the charge is resolved and there is “final disposition,” or a lawsuit is filed. When a charge is not resolved after investigation, and the charging party has received a notice of right to sue, “final disposition” means the date of expiration of the 90-day statutory period during which the aggrieved person may bring suit or, where suit is brought by the charging party or the EEOC, the date on which the litigation is terminated, including any appeals.

Here are the specific requirements of these regulations as stated on the EEOC website:

  1. All Personnel and Employment Records made or used (including, but not limited to, requests for reasonable accommodation, application forms submitted by applicants, and records dealing with hiring, promotion, demotion, transfer, lay-off or termination, rates of pay, compensation, tenure, selection for training or apprenticeship, or other terms of employment) must be preserved for the following periods:  
    1. Private employers must retain such records for one year from the date of making the record or the personnel action involved, whichever occurs later, but in the case of involuntary termination of an employee, they must retain the terminated employee’s personnel or employment records for one year from the date of termination.
    2. Educational Institutions and State and Local Governments must retain such records for two years from the date of the making of the record or the personnel action involved, whichever occurs later, but in the case of involuntary termination of an employee, they must retain the terminated employee’s personnel or employment records for two years from the date of termination.
  2. Other Records must be retained for the following periods:
    1. Labor Unions which are “referral unions” must retain all membership and referral records (including applications for same) for a period of one year from the date of making the record.
    2. Apprenticeship Committees that control apprenticeship programs must retain all apprenticeship records, including, but not necessarily limited to, requests for reasonable accommodation, test papers completed by applicants, and records of interviews, for a period of two years from the date of making of the record.
  3. Records Relating to a Charge of Discrimination. Where a charge of discrimination has been filed under Title VII, the ADA, or GINA, or where a civil action has been brought by the Commission or the Attorney General, the respondent private employer, state or local government employer, educational institution employer, labor union, or apprenticeship committee must retain all records related to the charge or action until final disposition of the charge or action. The date of final disposition means the date of expiration of the statutory period within which the aggrieved person may bring an action in a U.S. District Court or, where such an action has been brought, the date on which such litigation is terminated.

What happens After a Charge is Filed
When a charge is filed against your business, the EEOC will notify you of the charge within 10 days. The notification will provide a URL for you to log into the EEOC’s Respondent Portal where you will be able to access the charge and receive messages about the investigation. This does not mean that you have engaged in discrimination, it just means that the EEOC believes there is reasonable cause to investigate the issue.

You may be able to choose to resolve the charge through mediation or with a settlement. The EEOC will advise both the business owner and the person(s) levying the charge if the charge is  eligible for mediation. If you would like to simply settle, ask the investigator about the settlement option, if it’s applicable.

Regardless, the EEOC investigator will ask you and the person making the charge to provide information which he or she will evaluate. Then the investigator will make a recommendation going forward as to whether there is reasonable cause to believe that unlawful discrimination has taken place.

You will then be asked to submit a “statement of position.” This is basically your side of the story. They will ask for all your records and files that pertain to the case and/or may require an on-site visit of your business facility. They will likely ask for contact information for any employee that could be interviewed as a witness but you will be allowed to have a representative present at any of those interviews that are with management level witnesses. However, EEOC can conduct interviews without your presence or permission with non-management employees.

Discrimination, like many things, is subjective and ambiguous, and there are many times when the lines are blurred and the charges are unclear. This is why investigation is so important and moreover, why you need to keep careful records. Comply with and assist the EEOC investigator in every way possible and it will speed things up.

Stand your ground if you think the charges are unfair and you have facts to back you up. Expect that it could take as long as 10 months or more to resolve a charge.

Once EEOC investigation is complete, a determination is made regarding the merits of the charge. If EEOC can’t conclude that discrimination has occurred, the charging party will be issued a notice called a “Dismissal and Notice of Rights.” This notice lets them know that they have the right to file a lawsuit in federal court within 90 days. The employer will also receive a copy of this notice.

If EEOC determines there is enough evidence of discrimination to make a case, both parties will be issued a “Letter of Determination” stating that there is reason to believe that discrimination occurred. Both parties are then asked to join the agency in an effort to resolve the charge through an informal process known as “conciliation.”

When conciliation doesn’t wind up resolving the charge, EEOC has the authority to enforce violations of its statutes by filing a lawsuit in federal court. If the EEOC decides to drop the matter, the person or persons who levied the charge will receive a “Notice of Right to Sue” and may file a lawsuit in federal court within 90 days.

There is a lot at stake so it’s wise for business owners to stay on top of all of this. The best way to ensure you are prepared for any circumstance is to have someone in your corner that knows how to handle this type of matter.

Where Can I Get Help?

EmployerNomics is a nationally franchised HR Outsourcing Consulting group. We can find the right solution using our proprietary matchmaking system. If you would like to hear more please contact an agent using the form below or calling us at 407-490-2468. Remember though, we can’t help you if you don’t reach out.
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