A few tips on how to maintain your personnel files so they don’t become a source of damaging evidence in a lawsuit.
By guest blogger Pat Richter of
Shannon, Gracey, Ratliff & Miller, L.L.P.
In almost every employment case, one of the first things your ex-employee will ask for is a copy of his personnel file. In fact, ex-employees will often ask for a copy of their file before litigation begins (or even before a demand letter is sent). The documents you keep in your employees’ personnel files may turn into evidence that can be used against you.
If there is extraneous or harmful information in your personnel files, you can count on seeing it as an exhibit at trial. One way to prevent this from happening (or at least minimizing the risk) is to be watchful about what goes in to your personnel files.
What Goes In:
Performance evaluations. The most important thing to put in a personnel file is periodic evaluations of employee performance. In fact, the employee’s annual evaluation can be a good time to double check that the documents in the file are accurate, up to date, and complete.
In addition to performance evaluations, you should keep important job-related documents in the personnel file, including:
job description for the position
job application and/or resume
offer of employment
IRS Form W-4 (the Employee’s Withholding Allowance Certificate)
receipt or signed acknowledgment of employee handbook
forms relating to enrollment in employee benefits
forms providing next of kin and emergency contacts
complaints from customers and/or coworkers
awards or citations for excellent performance
records of attendance or completion of training programs
warnings and/or other disciplinary actions
notes on attendance or tardiness
any contract, written agreement, receipt, or acknowledgment between the employee and the employer (such as a noncompete agreement, an employment contract, or an agreement relating to a company-provided car), and
documents relating to the worker’s departure from the company (such as reasons why the worker left or was fired, unemployment documents, insurance continuation forms, and so on).
What Stays Out:
Your personnel files should not be a receptacle for every document, note, or thought about the employee. Here are some areas to be careful about:
Medical records. Do not put medical records into a personnel file. If you keep any medical records regarding an employee, keep them in a separate file and limit access to only a few people. Disability law requires that medical records be handled this way (and it’s a good idea to do so, in any case).
Form I-9s. Do not put Form I-9s into your employees’ personnel files. In fact, all I-9s should be put into one folder for USCIS. The government is entitled to inspect these forms, and if it does, you don’t want the agents viewing the rest of the employee’s personnel — and personal — information at the same time.
Unnecessary material. Indiscreet entries that do not directly relate to an employee’s job performance and qualifications — like references to an employee’s private life or political beliefs, or unsubstantiated criticisms or comments about an employee’s race, sex, or religion – can come back to haunt you.
Keeping the documents you need in a personnel file – and keeping out the documents that don’t belong – is a good first step to ensuring that your files are not used as evidence against you at trial. While even a properly maintained personnel file can contain some questionable information, applying a simple set of rules will help to filter out harmful information. A good rule of thumb: Don’t put anything in a personnel file that you would not want a jury to see.
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