Editor’s Note: The following post by Los Angeles Partner Pascal Benyamini appears in the latest issue of the California HR Newsletter. To sign-up to receive the California HR Newsletter click here.
Risk Management: What to Include In A Personnel File
The Issue: Can employers reduce risks of potential claims of discrimination and retaliation by employees through thoughtful management of personnel files?
The Solution: Yes. One of the many steps that employers can take to reduce risk of litigation is to ensure that documents that do not belong in a personnel file are kept in separate files and locked up.
Analysis: Discrimination claims come in many forms, including, race, gender, sex, sexual orientation, national origin, religion, mental or physical disability, or pregnancy. One of the most effective ways to reduce legitimate employment discrimination cases is for employers to expend the necessary resources to properly train their workforce, starting with management level employees. As part of that training, employers should be mindful of the types of documents that should be in personnel files and those that should not, but should be maintained separately. The rule of thumb is that employers should keep documents containing subjective information separate. This is because when managers make personnel decisions about an employee and the file contains information about protected characteristics of that employee, such as race, age, medical condition etc., the file may serve as circumstantial evidence in a discrimination claim against the employer.
Documents That Belong In A Personnel File: Any objective information related to the hiring, promotion, demotion, compensation, discipline or discharge of an employee, including, but not limited to: application; resume; offer letter; performance reviews; disciplinary notices; termination letter; resignation letter; compensation and deduction information; acknowledgment of receipt of handbooks; attendance records / receipt of vacation and personal leaves; change in name, address, telephone number; beneficiary regarding insurance provided by company; emergency contact information; and training records.
Documents That Do Not Belong In A Personnel File But Kept Separate: Any subjective information regarding the employee, including, but not limited to: subjective notes about the employee during the interview process, on application, resume etc.; reference checks or letters of reference; documents pertaining to criminal or
other investigation of the employee; credit reports; immigration and naturalization information (I-9 Forms); medical files of any records informing of a medical condition, including drug test results; wage garnishments; any
photos of employee, including photo of driver’s license, passport etc.; and EEO forms.
The file should not be available to supervisors who have no legitimate need for it.
Adhering to these simple guidelines will help the company reduce unnecessary claims.