Proper documentation is an invaluable tool in defending a company’s decisions relating to a particular employee. Poor documentation, however, can be more detrimental to an employer than none at all. Therefore, employers should ensure that all documentation relating to an employee is accurate, concise, and factual, and employers should keep in mind that any documents created may later be discoverable in future litigation. Personnel files should be periodically reviewed and updated with new information.
There is no legal obligation for private employers to maintain a personnel file. However, many employers do maintain such files, and must be cautious to handle them with the care required by the law. There are many questions regarding how employer personnel files should be handled, including privacy concerns and discovery issues. This topic provides some answers.
Under Colorado law, public employers are required to maintain an “official personnel file” for permanent and temporary employees, which must be preserved for 10 years after separation. These personnel files are supposed to contain the employee’s entire work history, including but not limited to:
All confidential employee information, including personnel files, medical files, disciplinary files, and any other files that relate to specific employees, should be kept secured in a locked location.
Only employees with a business-related need for the files should be able to access them.
Many employers maintain an “official” personnel file for each employee, containing the employee’s application as well as various forms, agreements, and acknowledgments signed by the employee, such as the handbook acknowledgement, any arbitration or bargaining agreement, any emergency contacts and release of information, performance reviews, and so on.
In addition to official employee personnel files, many supervisors maintain unofficial desk files for the employees they supervise. These unofficial files often contain copies of reviews, disciplinary records, as well as informal notes regarding the employee’s performance and minor infractions that don’t result in separate discipline. These files often will be generated by the supervisor but should be forwarded to human resources. While it is generally an acceptable practice to maintain an unofficial personnel file, employers must understand that any such file will be treated the same as an “official file” under Colorado’s new access to personnel file law described below. The new statute contains several exceptions for documents that are not included in the definition of personnel file. Such documents should not be included in employees’ personnel file, whether official or unofficial. Exclusions under the new law include, for instance, documents identifying a person who made a confidential accusation against the individual who may request access to his or her personnel file.
Like other personnel records, these files should be kept in a secure location. It is a good idea for such information to be copied and forwarded to the human resources department on a periodic basis – perhaps with the annual or semi-annual performance evaluation. When an employee is discharged, steps should be taken to ensure that any information contained in unofficial supervisory files is preserved and added to the employee’s official personnel file. Such files are often the only written evidence of certain disciplinary decisions, etc., and can sometimes be vital in employment litigation matters.
It is a good idea for employers to maintain workplace investigation files. Regardless of the outcome of the investigation, the record of what was done and the findings of the investigation can be crucial to employment litigation matters involving the employee or employees involved in the investigation, as well as other employees. Employers should note that investigation records should typically be kept separate from an employee’s personnel file, especially if the documents relate to an active and/or confidential investigation.
The Americans with Disabilities Act (ADA) requires medical information to be kept separately from other personnel records. Medical information of any kind should be kept out of an employee’s personnel file. This includes requests for leaves of absence based on underlying medical conditions and notes from physicians listing work restrictions based on health concerns. If a doctor’s note excusing an employee’s absence contains medical information, it should be kept in a separate file to preserve its confidentiality. A simple notation in the personnel file that a written note was provided to excuse the absence is sufficient.
The ADA requires that public and private employers maintain strict confidentiality procedures regarding medical information. Even if information does not directly identify an individual, his/her identity may be discernible based on absence records or other information. Once confidential medical information is discernible, it may be subject to broad dissemination. This is especially true with regard to the most sensitive medical information, such as mental health, HIV, or other serious illness. Because the potential for harm to the employee and to the company is so high, employers should carefully monitor access to confidential medical information and should establish procedures to ensure that this type of information is disseminated only as necessary.
In most cases, workers’ compensation claim forms should not be kept in personnel files because of the confidential medical information they often contain. Benefit claim forms for insurance purposes may also inadvertently disclose medical information and should be separated from personnel files in order to maintain confidentiality.
Under the Occupational Safety and Health Act (OSH Act), employers are required to maintain accurate records of employee exposure to potentially toxic materials or harmful physical agents, which are required to be monitored or measured under OSHA. These regulations provide employees and their representatives with an opportunity to observe the monitoring and measuring of toxic materials and to have access to certain medical records.
Private employers are required to allow current and former employees access to their personnel file. Former employees may access their past file once. Governor Hickenlooper signed House Bill 16-1432 into law in June 2016, which provides that private employers are now beholden to permit employee access to personnel files, with few exceptions. Financial institutions publicly chartered and secured are excluded. The law does not establish a requirement that private employers create files or create recordkeeping requirements. Employers should evaluate the law’s definition of “personnel file” and remove documents not necessary for disclosure when providing access.
Private employers should update their policy and procedure manual to include a clearly written, easy to understand procedure by which employees may request access and requests should be addressed in a reasonable and timely fashion so as not to introduce skepticism. The policy should include language that defines access as the ability to review their file, and prohibits the removal, tampering, editing or other manipulation of the file. Employers have the right to require a nominal fee to cover processing and the right to have one human resource employee that maintains the file accompany the employee to ensure all interests are protected. All requests should be managed and handled in a uniform fashion.
Employers should also educate management and appropriate staff regarding the requirements of Colorado's personnel file access law.
Public employers must give employees access to their own personnel files through both Federal law and the Colorado Open Records Act.
Both private and public employers can avoid problems and ensure that supervisors and human resources personnel are consistent when it comes to maintaining the files and monitoring employee access to these files by instituting and following a written policy as above. The policy should state the procedure by which employees may request and review their files and should provide appropriate supervision for these situations. This will ensure that the integrity of the records is maintained.
Employers should be cautious and seek the advice of counsel when responding to legal requests to view personnel files, so as not to violate their employees’ right to privacy.
In employment litigation, employers are routinely requested to produce employee personnel files, the production of which can sometimes violate employees’ privacy interests. The issue is complicated because personnel files often contain both information that is protected from disclosure by law, as well as information that is not. For instance, information that is often protected by privacy interests includes:
Such information has little or no relevance to employment disputes. However, personnel files also often contain information regarding performance, discipline, or termination. Plaintiffs will often request such information regarding similarly situated employees in litigation. The courts have held that there is no legitimate expectation of privacy in documents that merely pertain to an employee’s conduct as an employee.
As a general rule, employers should preserve employee documents for at least three years. That time period satisfies state and federal recordkeeping requirements, and matches or exceeds the statute of limitations applicable to most common employment law claims. If an employer has an employment practices liability insurer, it is recommended that the employer consult with that insurer to see if it has a recommendation or requirement on how long it wants personnel files retained.
When an employer does destroy records, it should do so under a written policy specifying both retention periods and destruction protocols. If an employment-related claim is filed against an employer, the employer should immediately suspend destruction of all documents that may be related to the claim, and issue a “litigation-hold” letter informing employees that they must not discard or destroy any potentially relevant documents. Failure to do so can result in serious sanctions and/or negative presumptions at trial.