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Protecting Employee Privacy

The practice of saving all data about an individual employee in a general personnel file can leave a company open to liability. Separate files should be created for medical, immigration and other materials.

Monday, June 18, 2012
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Question: We keep one general personnel file for each employee in our office where we store all documents on that individual employee. I am about to do an audit of my company's files and want to make sure we have the right types of documents in our general personnel files and remove anything that should not be there. What should and should not be included in an employee's personnel file?

Answer: The term "personnel file" is often used generically to refer to a record that contains an employer's saved documentation of the history and status of the entire employment relationship with an employee.

Employers often make the mistake of "dumping" all information pertaining to an employee in one general "personnel file" and assume that doing so is OK. Unfortunately, this will likely expose employers to substantial legal risk. That is because different types of information in a general personnel file may need to be retained differently.

The contents of a general personnel file are often very accessible as human resource staff, the employee and the employee's manager or supervisor all have the ability to review it. Further contents of a general personnel file are discoverable in litigation, and former employees may request access to its contents as well.

For these reasons, employers should be careful to place only unbiased and factual information of an employee's employment history in a general personnel file -- and this is impossible to do if all employment information is kept in only one file.

The better practice is to maintain different types of personnel files; for example, a general personnel file (for business purposes), a personnel file for medical documentation and a personnel file for legal compliance.

Documents should be placed in the appropriate personnel file, and all files should be maintained in a confidential manner, though some files, such as a personnel medical file, should have more-restricted access.

Overall, because of privacy concerns, access to information in any employee file should be strictly limited to only those people in your business with a clear need to use the information for business purposes.

The following lists information that should and should not be kept in a general personnel file. As is noted, some information that should not be kept in the general personnel file should still be kept by the employer but separately in, for example, a personnel medical file or a legal compliance file.

Information to Include in a General Personnel File:

* Job description;

* Resume and signed employment application;

* Educational transcripts;

* Letters of recommendation or confirmation of telephone references (including those references related to internal promotion);

* Certificates and licenses (if applicable);

* Offer letter, date of hire, termination letter, date of termination or separation, and exit interview;

* Training records;

* Acknowledgement forms of personnel policies, job description, and proof of attendance at discrimination and harassment training;

* Tuition and relocation-reimbursement records;

* Disciplinary notices and memoranda of any discussion with the employee regarding disciplinary or any other issue;

* Letters, certificates, and awards of recognition and commendation;

* Complete performance evaluations and testing documents used to make employment decisions (e.g., typing tests);

* Confidentiality and noncompete agreements;

* Wage and benefit information (e.g., W-2 forms, deduction or pay withholding authorizations, etc.);

* Wage attachments or garnishment notices;

* Notices of union requirements and membership dues check-off;

* Employment history information (records related to hiring, promotions, demotions, transfers, layoffs, recalls, employment status change, pay rates and other compensation), including copies of internal applications for promotions or transfers;

* Attendance records, including leave of absence records for non-medical reasons;

* Emergency contact information; and

* Current mailing address and phone numbers.

Information that Should Not Be Kept in Personnel Files:

* Any document that can be used to identify the protected characteristic of the employee (i.e., race, gender, ethnicity, disability status). This includes records kept in order to complete EEO reports.

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Privacy Policy

* Medical records. This information is confidential and should be kept in a separate file. Medical records can take the form of records of physical examinations, FMLA certifications, other records of medical leaves of absence, workers' compensation claims, health-insurance documents, and the result of drug and alcohol tests.

* Immigration (I-9) forms should be maintained three years after the date of hire or one year after an individual's employment is terminated, whichever is later. I-9 forms must be made available for inspection by the U.S. Citizenship and Immigration Services upon written notice, and if the I-9 is in the personnel file, the personnel file will then be subject to inspection by that agency.

* Credit check reports.

* Investigation materials, such as records or notes documenting investigations into the employee or into a complaint brought by the employee.

* Assessment tools that are not used to make employment decisions.

* Records of an employee's non-employment related activities, such as charitable organizations in which he or she is involved or political affiliations.

* Information employees are not entitled to access.

As was discussed in a prior Legal Clinic, many states allow employees to access their personnel files. Therefore, it is very important that all information that an employee would not be entitled to see under state law are excluded from official personnel files and kept separately.

This includes any company information that should be kept private, such as documents showing corporate bank or credit-card accounts or documents referencing identifying information of other employees.

Take-Away for Employers

A general personnel file should not be a "catch all" receptacle for every document that exists in a company about an employee. It should be organized and devoid of any entry that does not relate to the employees job performance or qualifications.

In general, it is best not to place anything in a general personnel file that you would not feel comfortable sharing with a plaintiff's attorney or jury.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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