Clients often ask us what types of documents should, or should not, be kept in employees’ personnel files, and who should be given access to such files. Below are some general guidelines on these issues.
What types of records should be kept in employee personnel files?
The following types of records should be maintained by the employer in employee personnel files: applications; offer letters; records of salary changes; forms signed by the employee to secure or change benefits; attendance records; performance evaluations; forms signed by the employee acknowledging his or her understanding of, and agreement to abide by, the employer’s policies; employee awards and commendations; records regarding disciplinary actions; records of employer property issued to the employee; training records, including injury and illness prevention program training records; verification of references; verification of employment provided to subsequent prospective employers; transfer requests; records of leaves of absence; wage attachments/garnishment notices; notice of union membership and dues check-off; and records of termination and reasons therefor.
What kinds of records should not be kept in employee personnel files?
Not all employee records should be kept in personnel files. Certain records should be segregated because of privacy and confidentiality concerns, and to prevent claims that others’ access to certain information exposed an employee to retaliation. The following kinds of records should be kept separate from an employee’s personnel file: verification of the right to work in the United States (Form I-9); EEOC charges and related documents; DFEH charges and related documents; employee grievances and complaints and related documents; workers’ compensation claims and related documents; medical information (discussed in more detail below); any information that may be defamatory; and any information that is not job-related.
What about payroll records?
Payroll records (i.e., records of hours worked, wages paid and date of payment, amounts earned as straight-time pay and overtime, and deductions) are generally kept separate from personnel files.
What about a supervisor’s notes regarding an employee’s performance or disciplinary issues?
A supervisor’s notes regarding an employee’s performance or disciplinary issues should generally not be kept in an employee’s personnel file. Instead, a supervisor’s notes regarding these issues should be kept in a separate file maintained by the supervisor. However, if the supervisor actually gives the employee a performance evaluation, counseling memo, disciplinary memo, or other similar document, these documents should be kept in the employee’s personnel file.
What about records that contain medical information about an employee?
Medical information about an employee is considered extremely confidential, and the Confidentiality of Medical Records Act significantly restricts an employer’s use and disclosure of such information. Medical information includes any individually identifiable information in possession of or derived from a health care provider or health care service plan regarding a patient’s medical history, mental or physical condition, or treatment. Any employer who receives medical information regarding an employee must establish appropriate procedures to ensure its confidentiality and protection from unauthorized use and disclosure. These procedures may include, but are not limited to, instructions regarding confidentiality to employees and agents handling files containing medical information and security systems restricting access to files containing medical information. Employers should restrict access to employee medical information to supervisors, managers, and others with clear business reasons for the information. Employers are also advised to keep employee medical information separate from other personnel records, under lock and key if possible. If the information is stored electronically, special access codes should be required. A complete discussion of an employer’s obligations under the Confidentiality of Medical Records Act is beyond the scope of this article; please contact us for additional information.
Who should have access to employee personnel files?
Because of concerns about employee privacy and confidentiality, access to employee personnel files should be restricted to those persons with clear business reasons for the information. Employee personnel files should also be stored in a secure place.
Do employees have access to their own personnel files?
Yes; employees (and, in some instances, former employees) have the right to inspect all personnel records that relate to their performance or to any grievance that concerns them. This inspection right extends to records that contain information on the employee’s qualifications for employment, promotion, additional compensation, termination or other disciplinary action. It does not, however, extend to the following: (1) records relating to the investigation of a possible criminal offense; (2) letters of reference; or (3) ratings, reports, or records that were obtained prior to the employee’s employment, prepared by identifiable examination committee members, or obtained in connection with a promotional examination.
