Your photocopier may be keeping copies of your records that have been scanned into the copier’s hard drive. You can access those records easily—and so can anyone else who knows how to work the copier’s hard drive.
“That’s something everyone should be aware of,” said attorney Catherine Moreton Gray, speaking at BLR’s National Employment Law Update, held two weeks ago in Las Vegas. This has serious implications for confidentiality, especially when the copier is disposed of, Gray noted. Gray is an associate in the Hartford, Connecticut office of Robinson and Cole, LLP.
Recordkeeping is a critical HR function, she says, but you won’t get tested until there’s an audit, charge, or lawsuit. And if you fail, poor recordkeeping practices can result in financial penalties and large verdicts in court.
What Records Must Employers Keep, and How Many Files Do We Need?
There are several types of records that HR managers need to be aware of, Gray says:
Records Related to Hiring
- Job postings and advertisements
- Job descriptions
- Applications & resumes
- Interview notes
- Tests
- Reference checks
- EEO data (if required)
- Requests for accommodation
New Hire Records
- Employee records
- Records related to job classification
- Exempt/nonexempt
- Full-time/part-time
- Temporary
- Independent contractor
Compensation System
- Job bands or salary grades
- Job evaluation
- Benchmarking analysis
Benefit Plans
- Benefit plans and summary plan descriptions
- Records related to eligibility for benefits
- ERISA reporting
- Retirement plans and 401(k)
Everything Else!
- Cal/OSHA required documents
- Policies and procedures
- Affirmative action
- Tax forms and payments
- Records to establish compliance with other laws
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Stepped-Up Enforcement Highlights Importance of Recordkeeping
Increased enforcement makes recordkeeping all the more important, Gray says. Note that:
- There is an expected 30 percent increase in the number of federal wage & hour investigators
- State and federal governments are cracking down on worker misclassifications
- OSHA is stepping up enforcement and reviewing the programs of state-plan states (including California)
- The OFCCP has increased staffing and is pledging additional on-site audits
Warning Over Shadow Files
One thing many HR managers forget is “supervisor shadow files”—the files or partial files that supervisors tend to keep at their own desks, separate from the official files kept by HR. If information is used for making employment decisions, it should be in the company personnel file, not just the supervisor’s file, Moreton says.
How about your supervisors? Fully trained and keeping all their records as they should? Especially when new to the job, most supervisors don’t know how to handle things like recordkeeping—or discipline, harassment, hiring, firing, FMLA, or accommodating a disability. It’s not their fault—you didn’t hire them for their HR knowledge—and you can’t expect them to act appropriately right out of the box. But you can train them to do it.
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