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Recordkeeping Requirements That Family Employers Need To Undertake To Help Limit Liability

The U.S. Court of Appeals for the Seventh Circuit recently decided that individuals bringing claims under the Illinois Biometric Information Privacy Act (BIPA) can recover damages in certain circumstances.

BIPA, enacted in 2008, protects the privacy of biometric data and addresses the risk of identity theft from compromised biometric data. Section 15(a) and 15(b) of BIPA require organizations to post a general notice regarding any biometric data collection and receive consent from each individual whose biometric data it collects, respectively. Kristin Bryan "BIPA Survives Huge Challenge: Seventh Circuit Holds That BIPA Violations Cause Injury Sufficient for Article III Standing" (May 06, 2020).

Commentary and Checklist

Biometric data is just one form of information about your staff that must be properly preserved. This is especially true if employers use biometric data, like fingerprints, for recording time worked for a family employer.

The Fair Labor Standards Act requires family employers to keep certain wage and hour-related records. If you fail to collect and store information required by law, you could face a fine.

The federal FLSA requires family employers to keep, for at least three years:

·      Payroll records,

·      Collective bargaining agreements, and

·      Sales and purchase records.

Records used to determine wages must be kept for at least two years.

The DOL states that family employers must maintain the following records for every non-exempt staff member:

·      Full name and Social Security number

·      Address, including zip code

·      Birth date, if younger than 19

·      Sex and occupation

·      Time and day of week when the staff member’s workweek begins

·      Hours worked each day

·      Total hours worked each workweek

·      Basis on which wages are paid (e.g., "$9 per hour", "$440 a week", or "piecework")

·      Regular hourly pay rate

·      Total daily or weekly straight-time earnings

·      Total overtime earnings for the workweek

·      All wage additions or deductions

·      Total wages paid each pay period, and

·      Date of payment and the pay period covered by the payment.


For more information about the type of data they must collect, family employers should read the Department of Labor’s “Fact Sheet #21: Recordkeeping Requirements under the Fair Labor Standards Act (FLSA).”

Always work with your legal counsel to confirm you are keeping all records on staff required by federal, state, and local law.

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