The Make-Up Of A Good Employee File - ABA YLD 101 Practice Series

By Beth Eagleson

Maintaining a useful, and legally compliant, employee file requires understanding of what should not be in the file as much as it does what should. Good employee files have all necessary and proper information, separated where required, and are free from extraneous materials that could provide the basis for discrimination or other employee claims. Good employee files are regularly reviewed and updated to assure that information is complete and accurate. Good employee files are kept in a locked area, with only "needs to know" access, to assure employee privacy.

The term "personnel file" is often used loosely to describe all files pertaining to an employee.
But, a "personnel file" is really several different files, each serving a different purpose. The "employee history file" documents the employee's history, including hiring, changes in status (promotions, demotions, discharge), performance appraisals, training and development, and other documents related to job performance. A "payroll" or "salary history" file documents changes in salary, tax status, attendance, and authorizations for payroll actions. Documents pertaining to benefits comprise a third file. While these files can be combined, misfiling and improper use of information, and potential employee-privacy violations, are minimized by separation.

Other information should never be included in "personnel files", including medical records, background investigation records and reports.

What IS In A Good Employee File

"Employee History File"

  • Request for an application
  • Original employment application and/or resume
  • Pre-screening application notes
  • Employment interview form or notes
  • Signed authorization for obtaining background information (must comply with the Fair Credit Reporting Act and state laws)
  • Education verification
  • Employment verification
  • Reference check verification
  • Rejection letter (if applicable)
  • Employment offer letter (if applicable)
  • Acknowledgement forms showing receipt of employee handbook, office procedure book, safety handbook, or any other documents regarding policies and procedures
  • Confidential/proprietary information agreements
  • Employment contract (if applicable)
  • Relocation offer records and relocation report
  • Completed performance appraisals
  • Performance improvement records
  • Reports of coaching/counseling sessions
  • Employee written warnings
  • Change of status documentation (promotion, demotion, full-time, part-time)
  • Training/classes taken records
  • Termination records (including date of and reason for discharge, exit interview records, verification of return of all office keys, phones, computers and other equipment)
  • Current, complete emergency notification information, including email and cell phone numbers

Wage or Salary History File

  • Job descriptions
  • Payroll deduction authorization forms
  • W-4
  • Compensation history records
  • Notifications of wage/salary increase or decrease
  • Attendance records, including sick leave and vacation accrual and usage

Benefits File

  • Initial benefit selections and changes
  • Request for/response to non-medical leave of absence

What Is NOT In A Good Employee File

Medical Information
The Health Insurance Portability and Accountability Act of 1996 (HIPPA) requires employers and health care providers to protect the confidentiality of medical records, including separate maintenance from other business records. As a practical matter, not only should certain medical information be excluded from employee files, medical information received should be kept in a separate file and separate locked file area.

  • Health care provider records or reports from pre-employment physicals
  • Health care provider records or reports related to disability or medical leave from employment
  • Health care provider records or reports supporting a request or grant/denial of Family and Medical Leave (FMLA)
  • Health care provider records or reports concerning request for, interactive process concerning, grant/denial of reasonable accommodation (Americans with Disabilities Act and/or state laws)
  • Diagnostic records
  • Laboratory records
  • Injury and illness reports (office, OSHA, workers' compensation)
  • Health insurance application forms
  • Life insurance application forms
  • Requests for medical leave
  • Any other document that contains employee-specific private medical information
  • Drug testing records/results

Employee Information
Employment Eligibility Verification (I-9). Keep I-9 forms for all employees in one file to protect employee privacy in the event of government inspection.

  • Background investigation reports
  • Personal credit history
  • Personal criminal conviction history
  • Arrest records
  • Information/records of lawsuits against others, particularly former employers

Investigation Records
Accusations of discrimination made by or against the employee and records concerning the investigation of those complaints. This applies whether the complaint is internal or from a federal or state agency.

  • Accusations of policy, ethical, or legal violations unless the basis for written employee discipline.

Extraneous Documents/Information

  • Documents pertaining to routine office administration.
  • Notes on or about file documents indicating management bias ("This person is sure sick a lot; "At the interview, this person limped"; "This person's glasses make her look old", as well as more obvious statements of possible discriminatory intent.}

Resources

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About the Author

Beth Eagleson, Esq., is a sole practitioner in San Clemente, California. Her area of practice is general civil litigation, with an emphasis in employment law. She advises and litigates for individuals, businesses, and corporations in Southern California. Ms. Eagleson founded the employment law practice at San Diego Gas & Electric Company, a subsidiary of Sempra Energy, a Fortune 500 company. Ms. Eagleson is a speaker on employment law for the Orange County Bar Association, and is a member of the ABA (Labor and Employment Law Section; General Practice, Solo and Small Firm Division), San Diego County Bar Association, and the Warren G. Ferguson Inn of Court.

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