In this week’s episode our question of the day is What Goes In a Personnel File.
If you have employees, a personnel file is an important thing to have. It holds the employment records and other important information.
So, that all sounds pretty simple – right? Just get a folder, dump in everything that has anything to do with the employee and call it a day.
Well, not quite
Why are personnel files more complicated than they seem? Well first off, because you aren’t the only person to see or use the personnel file. Your employee has a right to view the documents in their file, and those records could also be subpoenaed in a legal proceeding. And, on top of all that – the file can be audited by folks from state and local agencies, to see if it complies with relevant laws.
So, let’s get right to the care and feeding of a personnel file. First, what goes in the darn thing?
Well actually a personnel file isn’t just one file. It’s made up of a number of different files and records – each with their own purpose. There’s the benefits file, the payroll file, the leave file and the employment records file. Oh, and don’t forget the authorization to work in the US – that’s a completely separate file – more on that later.
Why so many files? Well the concept of the personnel file is that if I get transferred from one department to another, my new manager could be given my personnel file for review, and it wouldn’t divulge any information that might trigger possible discrimination – things like my age, or ethnicity, or my medical history. My new manager should only have access to the employment version of my name, rank and serial number. So, hire date, salary, promotions, evaluations etc. – and that’s it!
“…I-9 forms are so special that you’re required to keep them altogether, and separate from the employee records.“
That means anything related to benefits like an enrollment application, claim disputes and anything else related to my benefits coverage, has to be held in a separate file. In fact, even beyond that – any medical information that falls under the health information privacy laws, such as HIPAA, are subject to special protection rules. All that to say that not only should you hold my medical file separate and not provide it to my new manager, it actually has to be physically segregated from the rest of my employment information – and by that I mean filed in a separate filing cabinet, with a different key. You see HIPAA information is considered ‘need to know’, and an auditor doesn’t think the whole HR department, or all of company leadership, has a need to know my protected medical info. So if you do find yourself being audited, you’ll have to explain who has access, what their job function is, and why they might have a need to know. And if all that doesn’t convince you, how about this – the American with Disabilities Act specifically prohibits you from including medical information in my general employment file.
Next up, the payroll file this would hold things like copies of pay stubs, W2s and direct deposit forms (because they have banking information). Timecard records, tax withholding and reimbursement documents would also be in the payroll file. And something like a wage garnishment actually has 2 pieces, one part goes with the payroll records, and the other (the part that notifies the employee etc.) goes in the employment records file. The big positive with holding payroll records all together is that you don’t have to dig through each person’s record when you’re researching a payroll question. You can file things under the payroll date, and easily look at all the documents, company wide, for that payroll period.
The leave file houses anything and everything related to leaves. Whether it’s a leave for pregnancy, or illness, or a workers comp related injury – as you might guess, there could easily be doctor’s notes in this record. And while you should always be very careful to only get the start and ending date of when the employee is unavailable to work – sometimes a doctor’s office is gonna include something about diagnosis or prognosis. So for that, among other reasons, it’s important that you hold the leave file separately.
So with all that – what actually does go in the employment records file? Well, anything around job offers, promotions, demotions, transfers, salary and other compensation, training, policy acknowledgements, signed agreements (such as confidentiality or inventions agreements), performance documents like warnings and other disciplinary notices, evaluations, job descriptions, and new hire documents – as long as they don’t contain any of the protected information that we talked about earlier). And of course, anything related to litigation or a workplace investigation – well, that would be held in an even more top secret, separate file. But if that were to happen, your legal counsel would be involved, and would also give you guidance on how to maintain information related to the case.
And a quick word about interview documents, such as interview notes, test results etc. Those should be held with the job recruiting file vs. making them part of the personnel file. Often there may be notes or information the company would prefer to keep confidential, in those materials. So we suggest you not store them in the personnel file.
Oh, and one more thing I told you we would cover later – that’s the authorization to work in the US, commonly called the I-9 form. This form is a big deal, because it has a whole host of confidential information, birthdate, immigration status. possibly ethnicity etc. In fact, I-9 forms are so special that you’re required to keep them all together, and separate from the employee records. I’ll tell you a secret – the very first thing an auditor does when they come in to look at the personnel records, is look for I9s in the personnel files – because they know there’s a very good chance that’s where they are. And it’s an automatic fine.
So, right now – pause the episode, go to your personnel files, and pull out every singer I-9 form and put them in a separate folder or file.
I also get this question all the time. Do I have to show the employee their file if they ask. Well, it depends.
There isn’t a federal, nation-wide law about employees getting their personnel file. But many states have passed laws that grant employees the right to view or copy some or all of their records. So, the short answer is double check with your state guidelines. For instance, in California current and former employees have the right to inspect and receive a copy of their personnel files and any records that relate to their performance or any grievance.
Now, if you keep your files electronically vs. physically – these separation guidelines still hold. Make sure you break everything out, and limit access to various pieces of information.
And one final point – DO NOT just throw random notes in the personnel file. As I mentioned before, everything in the file can, and usually does, become part of any legal proceeding that’s happening. I’ve seen all sorts of things in the file – notes from the manager that say “well, Vicky called in sick again today, but I don’t believe her”. What can I say – not good.
And don’t think that just because you have the formal personnel file, but you are also squirrelling away information in a separate folder under my name, that you can keep the squirreled information out of the lawyers hands – you can’t. When they ask for records, they ask for all related documents – so you ‘re required to cough up everything.
Believe me, that kind of thing can get you in a world of hurt, and it doesn’t’ have to happen. Just don’t put things in the file you wouldn’t want on Google’s front page.