Recordkeeping Q&A

By law, employers are required to keep certain employee records and make them readily available. Do you know the answer* to this question: 

• Our company does pre-employment drug testing. May we keep the test results in the employee’s personnel file? Or must the results be kept in a separate file?

CalChamber's Recordkeeping 101 live webinar can help you understand compliance requirements and what records you must keep confidential.  

*All medical information should be kept in a separate confidential file, separate from the employee’s personnel file. Medical information is considered confidential and should not be disclosed to anyone unless they have a “need to know.” 

Final GINA Recordkeeping Rule Issued

On February 12, 2012, the EEOC issued its final recordkeeping rule for the federal Genetic Information Nondiscrimination Act (GINA). This rule will take effect on April 3, 2012.

The new recordkeeping rule (first proposed last June) requires employers to take the following steps:

• Any personnel or employment record made or kept by an employer must be preserved by the employer for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later. In the case of involuntary termination of an employee, the personnel records of the individual terminated shall be kept for a period of one year from the date of termination.
• Where a charge of discrimination has been filed, or an action brought by the EEOC or the U.S. Attorney General, against an employer under GINA, the employer must preserve all personnel records relevant to the charge or action until final disposition of the charge or the action.

The same exact requirements already exist under Title VII and the ADA. The final regulations “do not require employers to create any records and do not impose any reporting requirements, but merely require employers to maintain the records that they do create.”

GINA prohibits employers from discriminating against employees or applicants because of genetic information. California law also prohibits discrimination on the basis of an employee's genetic information or genetic characteristics.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

Sign up for CalChamber's live Recordkeeping 101 webinar on March 15, 2012:

• Presented by two top CalChamber legal counsel with employment law expertise
• Option to submit questions during the live event
• Live webinar attendees receive downloadable webinar slides

 

Red Flags Rule Enforcement in Effect December 31, 2010

Employers take note: The Federal Trade Commission (FTC) will start enforcing the Identity Theft Red Flags Rule from December 31, 2010, forward. The Red Flags Rule requires certain financial institutions and creditors to develop, implement and maintain a written identity theft prevention program.

To learn more about the Red Flags Rule and how it applies to business owners, CalChamber members can read the full update and analysis on HRCalifornia. Not a CalChamber member? Test-drive HRCalifornia with a 15-day Free Trial.

Business owners can download an FTC publication, Fighting Fraud with the Red Flags Rule: A How-To Guide for Business, for information on complying with the Rule. The FTC also created a step-by-step instruction form to help explain how to design an identity-theft prevention program for businesses and organizations with a low risk for identity theft.

Electronic Filing Form 5500 Begins January

Pension and welfare benefit plans are required to file an annual report about their financial conditions, investments, and operations. This requirement may generally be satisfied by filing the Form 5500 Annual Return/Report of the Employee Benefit Plan, along with any required attachments.

Beginning January 1, 2010, every Form 5500 must be filed electronically using EFAST2, DOL's new fully electronic processing system.

ICE Turns Up the Heat on Employers

In May, we informed you that the Department of Homeland Security (DHS) announced a major shift in the worksite enforcement program conducted by Immigration and Customs Enforcement (ICE), and now we've seen some of the results of that enforcement.

ICE is the largest investigative agency in the U.S. Department of Homeland Security, and it's getting tough on employers who "cultivate illegal workplaces." On Nov. 19, ICE Assistant Secretary John Morton announced that ICE issued Notices of Inspection (NOIs) to 1,000 employers across the country "associated with critical infrastructure - alerting business owners that ICE will audit their hiring records to determine compliance with employment eligibility verification laws."

Such audits involve comprehensive reviews of I-9 forms, and employers who are out of compliance with immigration-related employment laws face hefty penalties. To date, ICE has issued approximately $2.3 million worth of fines to employers found to be out of compliance.

Visit HRCalifornia to download a copy of the most recent I-9 form.