Primer: What Attorneys Wish Employers Knew About Personnel Files

An employee’s personnel file can be a crucial piece of evidence in employment litigation. What information is or is not contained in a personnel file, and sometimes how and where that information is stored, can dramatically alter a party’s case in a lawsuit. For example, a lack of time records will aid an employee’s wage claim pursuant to the Fair Labors Standards Act, but an employee’s well documented disciplinary issues will aid an employer’s defense against a wrongful termination suit.

Interestingly, while various laws require employers to maintain certain records (e.g., records related to workplace injuries, immigration status forms, and records of time worked), there is no explicit requirement that an employer maintain a general personnel file for each employee. Nevertheless, employers should maintain employee personnel files, and establish clear protocols for creating and maintaining the files.

It is recommended that personnel files be segregated from general business records. Ideally, personnel files should be kept in a secure location such as a locked filing cabinet, if in paper form, or password-protected folders, if in digital form. Businesses should also adopt record retention policies which govern the length of time employee records are maintained. The policy, however, must be consistent with the record retention requirements of various federal and state employment related laws. Only the business’s record management officer should be authorized to dispose of records contained in personnel files, and only consistent with the retention policy.

Generally speaking, access to personnel files should be limited to those who genuinely require access to the information therein, such as human resource managers. Individual employees, however, do have the right to access their own personnel file to determine “his or her own qualifications for employment, promotion, additional compensation, termination or disciplinary action,” pursuant to 43 P.S. § 1322. Nevertheless, employers can restrict employees’ access to their personnel files to once per year, and establish other reasonable requirements for accessing personnel files such as no right to remove the documents contained therein from the premises, that inspection occur in the presence of a designated official, and that records only be made available during business hours, pursuant to 43 P.S. § 1324.

Personnel files should contain documents arising during the hiring process including but not limited to an employee’s contact and emergency contact information; employment application; resume; letters of reference; and offer letter or employment contract. Each employee’s personnel file should also include information related to his or her wage rate and job description. The job description should note whether the employee is classified exempt or non-exempt with respect to overtime pay.

Personnel files should also contain documents arising during the employment relationship including but not limited to performance reviews; acknowledgements of new employer policies; records showing trainings and certifications; and time records. Documentation of employee discipline must also be in a personnel file. These types of documents will include warnings and documentation of other disciplinary actions, as well as counseling or performance plans. An employer also wants to document and maintain records showing any changes in an employee’s salary; reporting structure; title; and exemption status. Likewise, the personnel file should include the tracking of leave usage such as vacation and sick time.

Lastly, personnel files should contain documents related to the termination of an employee’s employment including but not limited to a letter of resignation or notice of termination; documentation of reasons for the termination or layoff; COBRA benefit continuation notices required by law; and severance or separation and release agreements.

Certain employee documents, however, should be maintained by the employer but kept separately from the “personnel file.” These types of documents are often sensitive and access to the document should be strictly limited because they contain personal and potentially harmful information if improperly disseminated. Examples of these types of documents are investigation files such as those arising from sexual harassment claims or whistleblower complaints; employees’ medical information such as requests for FMLA leave or requests for accommodation pursuant to the ADA; and documents which contain employees’ genetic information. Permitting improper access to these documents could violate specific laws, but also bolster an employee’s discrimination claim.

If you have any questions regarding personnel files generally, record retention policies, or legal requirements for maintaining employment documentation, you should contact an experienced and knowledgeable attorney for a consultation.

Matthew T. Hovey, Esquire is an attorney at the law firm of Wolf, Baldwin & Associates, P.C., which has offices in Pottstown, Reading, and West Chester. He practices in the areas of municipal law, business representation, and civil litigation. He may be reached by telephone at 610.323.7436 or by e-mail to mhovey@wolfbaldwin.com.

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