“ARE YOUR PERSONNEL FILES HELPING OR HURTING YOU?”
What you do not know can hurt you. Many employers have gotten into trouble for not
maintaining employee privacy, keeping documents that relate to an employee's
political views, private life, or unsubstantiated criticisms about an employee's race,
gender or religion in an employee’s personnel file. Because personnel files
commonly become evidence during employment litigation, periodically maintaining
and updating your employees' personnel files may help you avoid expensive
employment litigation. To protect yourself, it is important to learn the following rules
regarding what should and should not go into personnel files, and then strictly apply
those rules.
What to Keep in a Personnel File
You should begin a personnel file for each employee on the date of hire. Most, but not all,
important job-related documents should go in the file, including the following:
Employment
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Request for application
Employee's original employment application
Prescreening application notes
Employment interview report form
Education verification
Employment verification (not Form I-9)
Other background verification
Rejection letter
Employment offer or welcome letter
Employment agency agreement if hired through an agency
Employee Handbook acknowledgment form showing receipt of Handbook
Checklist from new employee orientation showing subjects covered
Veterans/Disabled self-identification form
Transfer requests
Relocation offer records
Relocation report
Job description for the position
Emergency contact information
Employment contract
Any written agreement, receipt, or acknowledgment between the employee and the
employer; i.e. noncompete/nonsolicitation/nondisclosure agreements, company provided
automobile or expense account.
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Payroll
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Payroll authorization form
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IRS Form W-4 (the Employee's Withholding Allowance Certificate)
Weekly time sheets
Individual attendance record
Pay advance request record
Garnishment orders and records
Authorization for release of private information
Authorization for all other payroll actions
Notification of wage and or salary increase/decrease
Performance Appraisals
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New employee progress reports
Performance appraisal forms
Performance improvement program records
Employee written warning notice
Training and Development
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Training history records
Training program applications/requests
Skills inventory questionnaire
Training evaluation forms
In-house training notification letters
Training expense reimbursement records
Employee Separations
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Exit interview form
Final employee performance appraisal
Exit interviewer's comment form
Record of documents given with final paycheck
Any 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)
Benefits
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Emergency Contact Form
Medical/Dental/Vision coverage waiver/drop form
Vacation accrual/taken form
Request for non-medical leave of absence
Retirement application
Payroll deduction authorizations
COBRA notification/election
Hazardous substance notification and or reports
Employer concession and or discount authorization
Annual benefits statement acknowledgment
Safety training/meeting attendance/summary forms
Reviewing Personnel Files
You should establish a time to periodically review each employee's personnel file, perhaps when
you conduct the employee's annual evaluation. During this review, consider whether the
documents in the file are accurate, up to date, and complete. Some questions to consider:
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Does the file contain every written evaluation of the employee?
Does the file reflect all of the employee's raises, promotions, and commendations?
Does the file show every warning or other disciplinary action taken against the
employee?
If your policies provide that written warnings or other records of discipline will be
removed from an employee's file after a certain period, have they been removed?
If the employee was on a performance improvement plan, a probationary or training
period, or other temporary status, has it ended? Has the file been updated to reflect the
employee's current status?
If the employee handbook has been updated since the employee started working for you,
does the file contain a receipt or acknowledgment for the most recent version?
Does the file contain current versions of every contract or other agreement between you
and the employee?
What Not to Keep in a Personnel File
Your personnel files should not be a receptacle for every document, note, or thought about the
employee. Here are some areas about which to be careful:
Medical records: Do not put medical records into a personnel file, e.g., physician records of
examination, diagnostic records, laboratory test records, drug screening records, any of the
records protected by HIPAA -- health insurance application form, life insurance application
form, request for medical leave of absence regardless of reason, personal accident reports,
workers' compensation report of injury or illness, OSHA injury and illness reports, any other
form or document which contains private medical information for a specific employee. If your
worker has a disability, you are legally required to keep all of the worker's medical records in a
separate file -- and limit access to only a few people.
Form I-9s: Do not put Form I-9s into your employees' personnel files. (Form I-9 is a form from
U.S. Citizenship and Immigration Services (USCIS), formerly the INS. You must complete an I9 for all employees, verifying that you have checked to be sure that the employees are legally
authorized to work in the United States.)
You should put all Form I-9s 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. Not only would this compromise your
workers' privacy, but it might also open your business up to additional questions and
investigation.
Insupportable Opinions: Do not write marginal notes on any document indicating management
bias or discrimination (e.g.: "This guy's too fat. He'd never make it," or "She's too old for this
job."). 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, unsubstantiated
criticisms or comments about an employee’s race, sex or religion will come back to haunt you.
Unnecessary material: Although an employee's personnel file may contain any other jobrelated documents, don't go overboard. A good rule of thumb: Don’t put anything in a personnel
file that you would not want a jury to see.
The attorneys in Wells Marble’s Employment & Labor Law Group offer various types of audits
from the most basic, high-level review (which may take only a few hours) to an in-depth analysis
of practices, documents, and compliance mechanisms. If you would like more information
regarding our audit services, or assistance creating sound and effective personnel policies, please
contact:
CRISTINA GUERRERO
Wells Marble & Hurst, PLLC
cguerrero@wellsmar.com
601-605-6900