When employers in Texas terminate employees, employers are required to keep many different types of documents on file for those former employees. To be clear, as an employer, you must comply with record keeping requirements for both current and former employees, and you cannot remove most records or documents for former employees until a specific amount of time has passed. The amount of time you are required to maintain documents and records for former employees will depend upon the type of document and the corresponding federal and state laws in Texas.
As the Texas Workforce Commission (TWC) explains, employers have a duty to keep certain employee records for particular amounts of time, and they must make them readily available. Our Frisco employment lawyers can provide you with more information about the types of documents you must maintain and the length of time for which you must retain them.
Employee Separation: Is There a Difference Between Termination and Resignation?
First, it is important for Texas employers to know that record keeping requirements typically apply to any separation between an employer and an employee: termination by the employer for cause, at-will termination or discharge, layoff, resignation, and even retirement. Sometimes employees leave their employment because of a decision by the employer, and sometimes employees elect to leave on their own by resigning. Yet even in a resignation, the employee might leave because of alleged workplace discrimination, which may amount to a “constructive termination.”
No matter what the circumstances are for a separation between the employer and employee, the employer must comply with the legal record keeping requirements.
Specific Record keeping Requirements Under Federal and State Law
What are your record keeping requirements as an employer? When a relationship with an employee ends, you will need to comply with the following record keeping requirements outlined by the TWC, the Department of Labor, and the U.S. Equal Employment Opportunity Commission (EEOC):
- Payroll records must be kept for at least three years under the Fair Labor Standards Act (FLSA) and the Age Discrimination in Employment Act (ADEA).
- Employee benefit plan documents and seniority or merit system documents must be kept for at least one year following termination.
- Documents that “explain the basis for paying different wages to employees of opposite sexes in the same establishment” must be kept for at least two years, and those records include pay rates, job evaluations, collective bargaining agreements, and materials concerning seniority and merit systems.
- Unemployment compensation records and unemployment tax records must be kept for at least four years under Texas law.
- Documents pertaining to FMLA leave must be retained for at least three years after the end of the FMLA leave period, regardless of when the employee is terminated or leaves the business.
- Hiring documents must be retained for at least one year from the date of hiring the employee, and longer if a claim or lawsuit is pending (then the records must be retained as long as the action is pending).
- OSHA and workplace safety records must be retained for at least five years.
- Documents concerning an employee’s exposure to hazardous materials must be kept for at least 30 years following the employee’s termination or separation.
- ADA documentation must be kept for at least one year following the creation of an accommodation or an employee termination—whichever is later.
- Personnel records must be retained for at least one year following an employee’s termination according to state discrimination laws.
Contact a Frisco Employment Lawyer
If you have questions about your responsibilities for record keeping following an employee’s departure from your business, one of our Frisco employment law attorneys can assist you. Contact Simon Paschal PLLC today.