How to dodge legal land mines in personnel files

Sherry Downer

Not all personnel files are alike. To protect employees' privacy, it's important to know which document types belong in a basic employee personnel file as well as what records should go into confidential and other types of files.

Basic personnel files are accessible to internal staff members such as supervisors and human resources departments as well as persons outside the company such as former employees and federal and state agencies conducting audits or investigating harassment and discrimination claims.

Certain information types, such as medical records, are protected and belongs in a separate confidential file. Other records should be kept in separate files for strategic reasons, such as limiting the information available in the event of an audit. Employers may follow several different personnel record filing systems based on categories of information and access restrictions.

Here are the records that should become part of each employee’s basic file:

1. Job descriptions    

2. Records relating to job offers, promotions, demotions, transfers, layofsf, discipline, termination

3. Performance evaluations, goals, education, training, letters of recognition

4. Records relating to employment practices (including policy acknowledgements and agreements)

The following records should be excluded from the basic personnel file and maintained separately.

1. Immigration Form (I-9) and related documentation

2. Equal Employment Opportunity (EEO) Records

3. Hiring records: Subjective interview notes, employment test results and background checks, including criminal history and credit reports.

4. Payroll and tax records: Payroll and tax information such as W-4s, withholding forms, pay information, wage deduction authorizations, etc.

5. Medical/insurance/benefits records and worker’s compensation injury claims: Medical questionnaires, benefit enrollment forms and claims, doctors’ notes, accommodation requests, and workers’ compensation injuries and claims records.

6. Investigation or litigation records and court orders: Records other than the relevant disciplinary action, counseling or other direct communications relating to an employment investigation, complaint or charge should be kept separate from the basic personnel file. Court orders relating to child support or garnishments should also be maintained separately.

Sherry Downer is director at Fennemore Craig in Tucson. Her practice focuses on business and employment law. Contact her at 520-879-6852 or email  her.