Unbeknownst to many practitioners, the FMLA has substantial recordkeeping requirements. Fortunately, most employers are already maintaining some of these records to satisfy FLSA and DOL requirements.
Specifically, the FMLA requires that covered employers maintain the following records for a 3-year period:
1.Basic payroll information and identifying employee data, including
- Name
- Address
- Occupation
- Rate or basis of pay and terms of compensation and the manner in which it was determined, including all additions and reductions in pay.
- Total compensation paid
(All covered employers must keep the records above, even if they don’t have eligible employees. Covered employers that do have eligible employees must maintain the following records in addition.)
2. A record of dates FMLA leave is taken by FMLA eligible employees (time records, requests for leave, etc., if so designated). Leave must be designated in records as FMLA leave. However, leave so designated may not include leave required under state law or an employer plan that is not also covered by FMLA
3.The hours of FMLA leave taken by eligible employees if in increments of less than 1 full day
4. Copies of all notices given by the employer to employees, as well as any received by the employer requesting FMLA leave. Copies may be maintained in employee personnel files
5. Information stored in any form (paper or electronic) that explains employer policies and employee benefits and the payment for benefits relating to taking paid and unpaid leave
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6. Premium payments of employee benefits
7. Records of any dispute between the employer and an eligible employee regarding the designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement
8. Records clearly showing that exempt employees worked fewer than 1,250 hours in a 12-month period, if leave is denied
9. FMLA-related medical records and documents pertaining to medical certifications, recertifications, or medical histories of employees or employees’ family members, created for the purposes of FMLA
Neither the FMLA nor its regulations require any specific manner for maintaining records.
Furthermore, the regulations specifically state that employers are not required to revise computerized payroll or personnel records systems to comply.
Employers must keep the records specified for no less than 3 years and make them available for inspection, copying, and transcription by representatives of the Department of Labor upon request. DOL may inspect these records no more than once every 12 months, unless it is investigating a complaint or has reasonable cause to believe there is a violation.
The records may be maintained in digital form provided that:
- Adequate projection or viewing equipment is available
- The reproductions are clear and identifiable by date or pay period
- Copies of the information can be and are made available upon request
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Joint Employment Relationship
A covered secondary employer in a joint employment relationship must maintain all the required records with respect to its primary employees, and must maintain payroll information with respect to its secondary employees.
In tomorrow’s Advisor, access to medical records, waiver of rights, and an introduction to the guide people call “The FMLA Bible.”
Great reminder about FMLA’s recordkeeping provisions! I would just add that retention requirements are a minimum set by law–employers may want to keep these records for longer periods.