Personnel Files: Are They a Legal Time Bomb?

Insights_HRforms.gifAn employee's personnel files should give an accurate and complete history of his/her employment with your organization. In case of a lawsuit, a judge and jury will expect documentation to back up your actions. Some documentation is required by law and could have very costly consequences in both time and money if they are not followed. For other records, you have a lot of leeway on exactly what you should file and how long you should keep it. This article will provide a basic guideline for personnel files. Always check that your state follows these basic federal guidelines.

What belongs in a personnel file

Here are documents that might be found in a personnel file, although some may be kept in another department like payroll:

  • Employment application and resume;
  • Attendance records (but not health-related absences);
  • Certificates of in-house or related training outside the company;
  • Awards and other recognition the employee has earned, along with letters of commendation from customers or clients that are job-related;
  • Performance evaluations, including any written response that the employee wants to make;
  • Receipts to show that the employee received your handbook or other specific policies, or attended a training session that is job-related; and
  • Employee separation information.

You will need to keep all personnel information in a secure, locked place to preserve confidentiality for your company and privacy for your employees.

Insights_FileCabnet.gifCertain types of documents should be kept separately from personnel files:

  • Medical information — This information is confidential and must be filed separately. This includes medical information regarding Workers' Compensation, Family and Medical Leave Act (FMLA) documents, Americans with Disabilities Act (ADA) documents, and health insurance as well as genetic information.
  • Records of investigation — When an employee is accused of harassment or other misconduct, documents relating to your investigation should be kept in a separate, confidential file. Disciplinary records include warnings, suspensions, memos from the employee's supervisor  documenting verbal warnings or informal counseling, and any written rebuttal from the employee (their side of the story). This not only protects the privacy of the accuser and witnesses, it could protect an employee who is falsely accused. If the investigation finds misconduct, the wrongdoer's personnel file should include the results of the investigation.
  • Legal case information — Documents pertaining to a lawsuit, an Equal Employment Opportunity Commission (EEOC) complaint, or consultations with your organization's lawyer should be kept separately. They could be protected by legal privilege, in which case you wouldn't have to allow the employee, or his/her lawyer, to see them.
    • I-9 forms — These forms, which verify that your employees are authorized to work in the United States, should be kept in a separate file. Although it isn't required by law, a separate file makes it easier to comply with an inspection by the U.S. Citizenship and Immigration Services, such as copies of I-9 documentation. You don't have to keep copies of documents that employees give you to prove their identity and work status, although some lawyers recommend it.

Retaining personnel files

Here are general timelines for keeping personnel documents:

  • Evaluations — Keep evaluations for all current employees no matter how old the documents are. If a long-term employee sues your company, you can try to use old evaluation