Personnel records often contain sensitive information, so you have to handle them carefully. They can not only prove you’re in compliance with government recordkeeping requirements, but they also can make or break your case during disputes with current or former employees.
If you know what to collect, what to file, and especially what can be thrown away, you’ll feel organized, knowing you have a legally safe system in place for all your recordkeeping requirements. In a recent CER webinar, Marc Jacuzzi outlined some guidance for us on this important topic and after the webinar he fielded questions from the participants. Here are some questions you may be wondering about as well, broken down by topic area.
Personnel Files: Electronic Versus Hard Copies
Q. When it comes to personnel files, must either the electronic file or the paper file be complete, or can they be complete together?
A. There’s really no legal requirement to even have a personnel file per se, but there are requirements to keep certain documents. So if you have some documents kept on paper and some kept electronically there’s nothing unlawful about that. However, you need to make sure that if you get a request by an employee to review their personnel file, or you get a demand letter requiring access, that you look at or provide access to both the electronic system and the hard copy. When you’re providing access to an electronic system to an employee, it’s very important that your system is set up so that the employee only has access to his or her information and no one else’s.
Q. Our company has some termination files that we need to keep, but we would like to get rid of the paper copies from storage. Can we scan and save an electronic version and then shred the original paper files?
A. Yes. Make sure to scan front and back. Be sure the scanned copies accurately reflect the originals. Make sure that they’re password-protected and that there’s some redundancy system behind them. Once you’ve confirmed all that, feel free to shred the originals.
Who Can View Personnel Files?
Q. Are managers allowed to review personnel files for their employees? What should be kept private?
A. There is no law prohibiting a manager from reviewing a personnel file. Where there may be concern, however, is a medical file. This is one of the many reasons that medical information should be kept as an entirely separate file. (If you have medical information in personnel files right now, immediately create separate files!) Certainly a standard personnel file, however, can be reviewed by a manager and there may be many valid reasons for that.
For example, a new manager might want to look at past performance reviews, absences, or tardiness of an employee. Just be careful. If there’s something in the file – for example, information about an investigation – I would not recommend the manager being able to review that because then there may be an argument that any action after that was deemed to be retaliatory.
Personnel Files: Various Components
Q. Should workers’ compensation information be separate from the rest of the medical file or should it be part of it?
A. That’s a good question. While it can be part of the medical file since it does contain some medical information, it’s advisable to keep it as a separate section. It just makes it easier, especially if you have to produce information about the workers’ compensation details—if it is kept separate, then you don’t have to produce the whole medical file.
In other words, I would not recommend having the workers’ compensation file mixed in with other medical information, as this could be problematic. For example, you may have an employee that has a medical condition that requires a reasonable accommodation, and then they may have a workplace injury that is completely separate from the first medical condition. The two things should be kept separate.
Q. If payroll has a copy of the W-4 form, does HR need to keep a copy in the personnel file as well?
A. The answer is no, but it’s still a good practice just so it’s in there.
Q. What is an employee acknowledgement?
A. An employee acknowledgement is the written (signed) acknowledgement of some policy or receipt, such as the handbook.
Q. What is a payroll authorization?
A. The payroll authorization form is the employee giving authorization to the employer to make some deduction from pay. Say, for example, the employee may want something changed about the deduction from their paycheck for their 401(k). Basically, it’s your authorization to deduct from their wages – and you want to keep a record of it.
The above information is excerpted from the webinar titled “What to Save, What to Shred: Legal and Practical Recordkeeping Rules for California HR.” To register for a future webinar, visit CER webinars.
Marc L. Jacuzzi, Esq., is a shareholder in the law firm of Simpson, Garrity, Innes & Jacuzzi. He advises clients regarding all aspects of the employer/employee relationship including hiring and termination, wage and hour requirements, employee classification, civil rights and discrimination issues, employee investigations, commission plans, employment contracts, employee handbooks and policies, confidential information agreements, reductions in force, leaves of absence, employment audits, M&A employment issues, violence in the workplace, and international employment issues.