Employee lawsuits often use personnel files as evidence of wrongdoing by employers. Among the critical record-keeping issues involving personnel files are what to include in the typical employee file, when separate files (medical, IRCA, etc.) should be maintained, and how long to retain the wildly different types of information in personnel files.
Employers across the country are scrambling to decipher the legal rules for filing … retaining … protecting … and destroying their e-records. And each decision seems to lead to another question (Must I keep hard copies, too? Do the "separate files" rules also apply to electronic personnel records? Is "delete" the same as "destroy"?). Get the answers here...
FAQs about organizing personnel files
1. What guidelines should we follow when setting up and organizing personnel files?
"Personnel records" are records kept by an employer about an employee's qualifications for employment, promotion, transfer, additional compensation, or disciplinary actions.
Note: A personnel record may not include personal information about another person.
Employees' medical files should be kept separate from their personnel files. This includes medical certifications, doctor's notes, requests for family or medical leave, results of medical exams, and the like. Medical files should be kept under "lock-and-key," with access granted to only those who have a legitimate business need-to-know.
I-9 documentation also should be kept separate from employees' personnel files. Although keeping I-9s separate is not a legal requirement, it is a good practice. Reasons: In the event of an audit, government officials will not have access to personal employee information. Not only that, but it will make it easier for you to extract the information when the government asks for it.
Keeping I-9 and EEO-1 forms apart from personnel files also limits unnecessary access to citizenship, national origin, race, and other protected information.
2. What type of information is typically kept in an employee personnel file?
Here is a list of general information that usually goes into a personnel file. Note that there are no laws requiring that you keep personnel files, per se, but federal, state, and industry-specific laws may require certain types of documentation to be retained.
- Personal information, including name, address, Social Security number, date of birth, and education
- Job application and résumé
- Licenses or certificates needed for the job
- A signed handbook receipt or employment contract
- Attendance and leave records
- Payroll records
- Performance appraisals, commendation letters, merit awards
- Disciplinary records
- Job description, title, location, and schedule
Records related to promotions, transfers, layoffs, or termination (including exit interviews)
- Safety and accident reports
- Emergency contact information
- Company-provided training and education records
- Fringe benefit information, such as name of insurance provider and pension plan participation
- Grievance records
When it comes to electronic records, mistakes are easy to make – and very expensive to undo. To find out how to avoid the legal pitfalls in electronic document collection, storage, retention and disposal, sign up for Electronic HR Records: Compliance & Best Practices Workshop today!
3. How long must employers retain employee personnel records?
A good record-keeping system depends on knowing what to get rid of, and when. Reasons: The more you keep, the more likely information will fall into the wrong hands; records take up space and administrative effort; you can reduce the risk of superfluous or obsolete records being seen in the wrong light and used against you.
BUT, disposing of some records too early could not only be against the law, but you could also find yourself in trouble if you need them to defend against claims in court, or comply with a court order or agency investigation.
Federal or state statutes typically dictate record-keeping retention requirements.
4. A former employee is demanding that we send her her personnel file. Do we have to?
Even if your state has a law giving former employees the right to access their personnel files, no law requires an employer to send the complete file. Typically, the individual would be allowed to view the file on the company's premises and to make copies of documents, which often can be at the individual's expense. If your state does not have a law, or the law does not address former employees, then it is up to you whether to give the ex-employee access and under what conditions.
In this interactive training, attorney and nationally recognized record-keeping expert Joe Beachboard will examine today's (and tomorrow's) electronic record-keeping issues, providing practical advice on communicating your policies to managers.
Electronic HR Records: Compliance & Best Practices Workshop will cover:
1. Record Retention: What, Where and For How Long?
- How electronic retention rules differ from paper standards
- How to know when it's safe to scan a document and dump the paper original
- Retention policy changes needed due to Lilly Ledbetter Fair Pay Act requirements
- The best methods for keeping records safe and secure
- Electronic I-9s: How to comply with the strict new federal rules on completing, signing and retaining
- The four steps you must include in your electronic I-9 program
2. Enforceable Agreements: What's Legal in the E-world
- Legal requirements when allowing individuals to complete applications online
- What counts as a "legal" electronic signature
- When can you change company policies via email?
- The key steps to an effective electronic records management system
3. E-Discovery and Information Management
- Which records you must be prepared to produce if hit with a legal complaint
- What's a "litigation hold" and when are you required to apply it to your electronic records disposal?
- The safest way to dispose of electronic HR records – and the questions to ask yourself before you do so
- How little-known Federal Rules of Civil Procedure should alter your policy for storing and deleting company emails
Access your fool-proof system for organizing personnel records today!