Do supervisors’ ‘Unofficial’ employee files raise any legal red flags?

Q. We have several supervisors who insist on keeping their own private files on employees in their departments, especially to record absences and comp days. Is this legal?

A. Generally, supervisors are free to keep whatever records they want about employees they supervise—and, in some instances, that is probably a good idea. However, supervisors should be trained on how to properly document employee performance. In addition, there are a few issues you should be aware of regarding “private” files:

1. HR must get copies of all records kept by supervisors. Should you end up in court, you don’t want conflicting documents.

2. Supervisors should check with HR to be sure they aren’t violating any laws. For example, under the Fair Labor Standards Act, private-sector employers are not permitted to use “compensatory” time as a substitute for paying overtime to nonexempt employees. Thus, HR needs to review how the comp days are being used here.

3. There may be state laws that govern personnel files. For example, although New York does not have a law governing the contents or viewing of personnel files in the private sector, Connecticut does. HR needs to make sure that managers comply with such laws.

4. Privacy is a legitimate concern. Employee records may be subject to certain privacy laws that supervisors may not be aware of.

5. Various laws require certain information (such as medical information) to be kept separate from other personnel files.
Overall, you should speak with the supervisors to determine whether there is a real need to keep private files as there is the real potential that doing so may lead to problems.