Employee personnel files contain documents that track the “vital statistics” of employment, such as new hire paperwork, background check records, handbook receipts, payroll withholding and benefits election forms, and disciplinary and performance related documents. However, these files should not include certain types of records:
- Documents that reflect medical information should go in separate files in order to comply with the privacy provisions of the Americans with Disabilities Act. The Genetic Information and Nondisclosure Act also requires that information about an employee’s genetic makeup be treated as private (family medical history might reflect such information and must be treated accordingly). Self-insured employers are also subject to the privacy rules of the Health Insurance Portability and Accountability Act.
- Records of investigations of complaints – Witness statements, employee complaint forms, investigative notes, etc. Keeping these in personnel files means that an employee’s request to review his/her file will require you either to disclose witness statements that might have been taken in confidence or remove them from the file, which could create questions of integrity.
- I-9 forms and the associated backup records. Keep these in a separate file to ensure that if the company undergoes an audit, it will not have to provide an investigator with access to entire employee personnel files (or, alternatively, require HR staff to cull through personnel files to retrieve all I-9s).
- Employee EEO-1 or other government required self-identification forms that reveal race, national origin, and gender.
- Other sensitive information, including e-mails between company officials and legal counsel or notes of conversations with counsel, should never go into an employee’s personnel file. Otherwise, the company might unwittingly waive the attorney-client privilege when affording the employee access to his or her file (or producing it during litigation to the plaintiff’s attorney).
Article courtesy of Worklaw® Network firm Shawe Rosenthal.
For more information on record retention, check out the Form of the Month.
