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Basic Questions - Personnel Files
No federal or state law
requires an employer to maintain personnel records as such; however, various
federal and state laws mandate that certain records be kept. For organizational
purposes as well as legal protection, you may want to keep separate, up-to-date
personnel files. Chances of becoming involved in legal actions related to
hiring, supervision or firing decrease when personnel records are maintained
correctly.
What to Keep in the Basic Personnel File
1. Employment related
records, such as:
·
Job descriptions
·
Employment application and resume
·
Documents used by an employer to make
employment decisions
·
Reference check documentation
·
College transcripts
·
Signed acknowledgements
2.
Records related to
·
Hiring
·
Promotion or demotion
·
Transfer or layoff
·
Rates of pay and other forms of
compensation
·
General training records
3.
Records related to other employment practices:
·
Letters of recognition
·
Disciplinary notices or documents
·
Performance evaluations
·
Exit interviews
·
Termination records
The
following records should be maintained in separate, locked files, observing each
entity’s confidentiality requirements:
Medical and Insurance
Records.
·
Be sure to follow HIPPA regulations. The
Americans with Disabilities Act (ADA) requires employers to keep all medical
records separate. Medical records include physical examinations, medical leave
time, workers’ compensation claims, and drug and alcohol testing.
Equal Employment
Opportunity
and MT Human Rights Laws.
·
In order to minimize claims of
discrimination, it is important to keep source documents that identify protected
classes in a separate file. Protected classes include race, national origin,
creed, sex, physical or mental disability, marital status, age and political
ideas (state, county, or city government).
Immigration (I-9)
Forms.
·
It is recommended that these forms be
maintained chronologically by year in a separate file.
Safety Training
Records.
·
OSHA may audit a company’s safety
training records; again, keep this information in a separate file.
Miscellaneous.
·
Documents related to internal/external
investigations and litigation, child support/garnishment documents and veteran
status records should be stored separately.
Who Should Have Access to Each Type of File?
Montana
has no law requiring employers to allow
employees access to their personnel files. However, collective bargaining
agreements and personnel policies may provide for employee access.
Create
a policy regarding access to personnel records. Define who will have access to
these records, such as the employee, human resources, supervisory, management,
and regulatory agencies. State the reasons access may be given. Keep personnel
records in locked cabinets.
If
legal problems develop, an employee will be able to see his personnel file
because it is discoverable during any litigation. Remember in the legal
process… if it is not documented, it did not happen (which can also mean that
it may be perceived to have happened exactly as documented by the employee.)
The
US Commerce Department recommends the Code of Fair Information Practices. The
main provisions of the code state that information in employee personnel files
should be limited to only necessary information, access will be controlled,
employees will have access to their own records, and procedures are in place for
correction and completion of the data. You should not allow employees to see any
items that could violate the privacy of other people.
Following are examples of who may need
access to personnel files:
Basic
Personnel Files:
·
Employee, supervisors with a need to
know, former employees, human resources
Medical
and Confidential Files:
·
Again, follow rules of HIPPA,
ADA
, and other regulations.
Payroll
Files:
·
Payroll staff, human resources, and
auditing/investigating agencies
I-9
Files:
·
Human resources and
auditing/investigating agencies
Record Retention
Simplify
your personnel record keeping by maintaining all records for the longest
required time period. Unfortunately, record requirements for different agencies
vary immensely. Bear in mind that expert opinions differ widely on how long to
keep various records from 4 years to 7 years to 10 years to FOREVER. In most
cases, employers should keep records for longer periods than required by law.
Exercise caution particularly with records involved in litigation, occupational
injury and illness records, and pension and insurance plans. Chemical safety and
toxic exposure records must stay on file for the duration of employment plus an
additional thirty years. Pension and insurance plans, and seniority or merit
systems must be kept for as long as the plans are in effect and for at least one
year following the termination of the plan.
Summary
of Federal Record Retention Periods
The following chart summarizes the record
retention periods of the federal laws detailed earlier in this chapter. The
numbers in the body of the chart represent the number of years each federal law
requires employers to keep the record. Look to the more detailed explanations of
the federal record keeping requirements for information on when a particular
time period begins—such as starting on the date on which the tax was paid, or
on the date of last entry in the file.
Keep the following points in mind regarding
the record retention chart:
·
Actual hires.
This chart applies to records that private employers keep on actual hires.
In addition, as noted in the text discussion, a few record retention
requirements only apply if the employer creates those records. For example,
Title VII requires an employer to retain for one year records on promotions,
layoffs, terminations, and other personnel actions—but only if the employer
routinely creates those records.
·
Pending actions.
If the company is involved in a pending lawsuit, charge, or grievance, it must
keep relevant records until the dispute is resolved. Relevant records include
personnel records on the person bringing the complaint or grievance, similarly
situated employees, and others in the job the person held or was seeking.
·
Defense of future lawsuits.
Retaining personnel records longer than the minimum period required by federal
law may help provide a stronger defense to lawsuits. For example, records
required under one law might be advantageous in defending a suit under another
law that is not filed until the records are lawfully destroyed. The length of
time from a personnel action to the date an employee must file suit based on
that action varies from statute to statute. As a result, destroying records
whose retention is no longer required could deprive an employer of useful
evidence to defend a lawsuit.
State
Record Retention Periods:
Employment Related
Records should be retained two (2)
years under Montana State Human Rights Administrative Rules. See Section
24.8.107 at:
erd.dli.mt.gov/humanright/documents/chap8.pdf
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