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 should keep separate, up-to-date personnel
files. The 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
. Test documents used by an employer to make employment decisions
. 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
. Termination/resignation letter or form
. Release to provide reference information
The
following records should be maintained in separate, locked files:
. Medical and Insurance Records-
. The Americans with Disabilities Act (ADA) requires employers to keep all medical
records separate. Medical records include physical examinations, medical leaves,
workers' compensation claims, and drug and alcohol testing.
. Equal Employment Opportunity-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 as this reduces the opportunity for an auditor to
pursue and investigate unrelated information.
. Safety Training Records- OSHA may audit a company's safety training records;
again, keeping this information in a separate file will limit the auditor from
investigating other information in the personnel file.
. Miscellaneous- Reference check documentation, exit interviews and documents
related to internal/external investigations and litigation should be maintained
separately. Also file child support/garnishment documents and veteran status
records separately.
Who
Should Have Access to Each Type of File?
There is no law in Montana requiring employers to allow employees access to their
personnel files; however, collective bargaining agreements and individual personnel
policies may provide for employee access.
Create a policy that identifies who has access to personnel records and for what
reasons. Consider the employee, human resources, supervisors, management, and
regulatory agencies. Always balance freedom of information with the right to
privacy laws. Keep personnel records in locked cabinets.
If you don't allow employees access to their records, you may want to consider
why you don't allow it. Is it because your records are poorly maintained? Are
there hidden secrets or illegal information in the file? Do you trust your employees?
Do your employees trust you?
Ultimately, if legal problems develop, an employee will be able to see his personnel
file because it is discoverable during litigation between employee (usually ex-employee)
and employer. Remember in the legal process.if it isn't documented, it didn't
happen...which can also mean...it happened exactly as documented by the employee
if you have no records.
The U.S. 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. Usually, you don't have to allow employees
to see sensitive items such as information assembled for a criminal investigation
or other information that might 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 employee, human resources
. Medical & Confidential Files -
Human resources, supervisors as needed for reasonable accommodation, and governmental/legal
agencies conducting investigation relevant to medical issues. You should also
inform first aid and safety workers about any disabilities that may require emergency
treatment and about specific procedures that are needed if the workplace must
be evacuated.
. 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.
Type of Record - Length of Time to Retain
Applicable Federal Law
(In many cases, several laws require that a particular record must be maintained.
In those cases, the law with the longest record keeping requirement is listed.)
A glossary of acronyms can be found below.
. Job Advertisements, internal job postings, offer and hiring records; 1 year;
ADEA, FLSA, Civil Rights Act, Vets Act, ADA
. Biographical data (name, address, birth date, sex, etc.); 3 years; FLSA
. Basic employment and earnings records; 2 years; FLSA and EPA
. Payroll Records and time cards; 3 years; FLSA, EPA, ADEA, Child Labor
. Employment contracts; 3 years; EPA and FLSA
. Medical records; 1 year (unless subject to FMLA); ADA, ADEA and Civil Rights
Act
. Family Medical Leave Act records; 3 years; FMLA
. I-9 Forms; 3 years or one year after termination; IRCA
. Government Contractors; 3 years from completion date of contract completion;
Service Contract Act, Davis-Bacon Act, Public Contracts Act
. Occupational Injury and Illness records; 5 years; OSHA
. Employee exposure to toxic substances; 30 yrs after termination; OSHA
. Summary Plans and Reports on Benefit Plans; 6 years; ERISA
. Promotions, demotions, layoffs, and transfer; 1 year; ADA, ADEA, and Civil
Rights Act
. Tax records and compensation records; 4 years; FICA, FUTA, FIT
. Sponsors of programs, Positive Drug Test Records (drivers); 5 years; Apprenticeship
Act, DOT regulations
KEY:
ADA (Americans with Disabilities Act);
ADEA (Age Discrimination in Employment Act);
DOT (Department of Transportation);
EPA (Equal Pay Act);
ERISA (Employee Retirement Security Act);
FIT (Federal Income Tax);
FICA (Federal Insurance Contributions Act);
FLSA (Fair Labor Standards Act);
FMLA (Family Medical Leave Act);
FUTA (Federal Unemployment Tax Act);
OSHA (Occupational Safety and Health Act);
IRCA (Immigration Reform & Control Act)
