Tuesday, March 11, 2014

EMPLOYEE PERSONNEL FILES

Dealing with paperwork is something that few enjoy. However, investing the time and effort to properly establish and maintain employee personnel files is extremely important and provides long term protection. Although the concept of a personnel file is familiar to many, surprisingly there is no law which mandates what information must be maintained in an employee’s personnel file. This decision depends on your company’s practices and should take into account who has access to the file. Generally, any job related materials should be included, such as:

• Job application and/or resume;

• Offer letter;

• Job description;

• Tax forms;

• Attendance records;

• Payroll authorization forms;

• Records reflecting a change in payroll rate, date of seniority, and other changes, such as name changes, date of birth and correction of Social Security number;

• Wage garnishment or garnishment notices;

• Education and training records;

• Performance appraisals;

• Resignation letters

The law provides limited guidance on what should not be in a personnel file. California law mandates that employers establish appropriate procedures to ensure that employee medical records and similar information remain confidential and protected from unauthorized use and disclosure. Thus, separate files should be maintained for this type of information. In addition to medical records, the INS Form I-9 should be kept separate from the personnel file. I-9 forms are required to be made available to government agencies when requested. If the forms are maintained in personnel files, then the government potentially gets to go through your personnel files. In addition, notes and letter exchanged with your attorneys or insurance claims professionals are likely privileged. They should not be maintained in your employee’s personnel file or else you risk waiving some very important legal protections.

Personnel files should be kept in a secure place and made available only to those who have a legitimate business reason for access. Under California law, employees have an absolute right to inspect and copy their personnel file. The law provides for penalties for an employer who

fails to timely comply with an employee’s request for a copy of their file. Former employees are allowed to review and copy their file. Employers are required to maintain a copy of each employee’s records for a period of not less than three years after termination of employment. Because some laws allow employees to wait four years before filing a claim, it is generally advisable to actually keep the file for four years. Further, a new California law requires employers to develop and provide a written form that employees can use to request access to and a copy of their personnel file. The written form must be made available to the employee or their representative upon verbal request from the employee to either the employee’s supervisor or an individual that the employer has designated to receive a verbal request for the form.

Sometimes requests for personnel files do not come directly from the employee but rather as a result of a subpoena. Timely and accurately complying with a subpoena is a legal requirement and may impact litigation such as a matter before the Workers’ Compensation Appeals Board or an employment discrimination case. Before complying with a subpoena, it is recommended that you consult with the attorney assigned to assist you in the litigation.
 Submitted by Cathy Arias, Burnham Brown Law Firm

Cathy Arias is the chair of Burnham Brown's Employment Law Department and specializes in counseling and representing employers. Full Biography.


Contact Information:
 
Cathy Arias
Burnham Brown Law Firm Direct Dial (510) 835-6806
carias@burnhambrown.com

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