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What Should and Should Not be in a Personnel File
STORING RECORDS IN A SINGLE PERSONNEL FILE COULD PUT AN HR MANAGER AT PERSONAL LEGAL RISK
Keeping all of an employee's information in one file might seem efficient, but it could leave your company open to a lawsuit, with potentially stiff financial penalties. What's more, as an HR manager, you could be sued personally if the wrong person gains access to an employee's private information.
This guide identifies examples of documents that belong in an employee's personnel file. It also identifies documents that should be kept in separate folders, so that when they are requested by people entitled to see them, you can quickly hand over a limited set of relevant information.
WHAT A PERSONNEL FILE SHOULD CONTAIN
In the event of employee litigation, employees are almost always entitled to copies of every document in their personnel file — and oftentimes the files of similarly situated employees. For this reason, a personnel file should only contain documentation of employment (but not hiring) decisions and acknowledgements that the employee understands company policies and procedures. This includes items such as:
- Performance reviews
- Training records
- Records of disciplinary actions
- Last-chance agreements
- Termination letter
- Signed acknowledgements that the employee understands company policies and procedures.
WHAT A PERSONNEL FILE SHOULD NOT CONTAIN
It may seem like a contradiction, but a personnel file should never contain personal information. For instance, if you include information on an employee's protected class status (race, sex, national origin, religion, age, disability, etc.) you could be exposed to a discrimination or an invasion of privacy lawsuit.
By the same token, a personnel file should never contain derogatory information of a subjective nature. For example, if you include opinions based on rumor or half truths, you could expose your company to charges of defamation, inflicting emotional distress, invasion of privacy, negligent recordkeeping, or negligent supervision.
You should also make sure that no personal information is printed on the outside of a personnel folder. The fact that a passer-by was able to see such information could be used in an invasion of privacy suit against both the employer and the individual who allowed the unintentional access.
KEEP SEPARATE FILE FOLDERS FOR DIFFERENT DOCUMENT TYPES
There are certain types of information you must make available to government auditors. However, it is important to not give them more than they are legally entitled to. Reason? The government could use that additional information against your company — possibly subjecting both your company and you, personally, to an invasion of privacy lawsuit. One solution is to maintain separate file folders for certain types of information:
- Hiring records, such as the employee's resume, application form, test results, reference check results, and notes from interviews.
- Medical records, such as medical restrictions or limitations, plus requests and certifications for reasonable accommodation pursuant to the Americans with Disabilities Act.
- Benefit information, such as enrollment forms and personal information collected for insurance and other coverages.
- Payroll records, such as signed authorizations to make payroll deductions, and wage and hour records.
- Tax records, such as W-9 forms, W-4 forms, 1099s, etc. Filing these separately from payroll records keeps them from becoming part of a Department of Labor audit.
- Investigation records, so that unproved allegations, co-worker names, and confidential interviews and findings will not be accessible to employees. The contents of this file can be protected under the attorney-client privilege.
- Equal Employment Opportunity records.
- Security records, such as a copy of a license to carry a concealed weapon, or photographs of individuals named in a restraining order.
- I-9 Forms.
- Workers' Compensation records.
- Toxic substance exposure records.
- Family and Medical Leave Act (FMLA) records.
- Emergency contact information.
- Original copies of forms used to collect information for entry into computerized HR information systems.
This does not mean that each employee should have 16 file folders. It does mean that if an employee takes FMLA leave, you will need a separate folder with all the information required by the FMLA. Employees who never take such leave will not be required to have such a file.
Finally, avoid storing multiple folders together in a single hanging file folder with the employee's name on it. Some auditors could argue that all the information in a hanging folder is “one file.”
CONSIDER A COMPUTERIZED HR INFORMATION SYSTEM
A computerized HR information system lets you store, retrieve, and manage the most important details about your employees. The same privacy rules apply to these automated records, but selective password clearance helps to assure tighter security access. For example, a clerk who is only authorized to view payroll information can have access only to fields that are related to payroll processing.
Article by Toni L. Chandler - President of T. L. Chandler &; Associates, Inc., from http://www.adp/com.
