Sample Question - Personnel Records

QUESTION

I know personnel records and medical records should not be kept together. In addition I know some of the basics of what goes in a personnel file, but what I really need are specifics. I need to know is what specifically can and cannot go into a personnel file, what records can / cannot be kept together, how many separate files do I need, and how long information should be kept in those files? In addition I would like to know what law or legislative act has this information.

1) What specifically can and cannot go into a personnel file?

Cannot:

• Information related to medical, injuries, and disabilities
• Information disclosing affirmative action identification
• Applications that include non-job related information
• I-9 Form
• Subjective documentation and/or performance appraisals

Can:

• Application
• Offer Letter
• W-4 Form
• Nondisclosure Agreement
• Orientation and/or Termination Checklists
• Performance Appraisals
• Salary Information
• Official Performance Information (i.e., letters or memos)
• Payroll Data
• Tuition Reimbursement Information
• Copies of Credentials (i.e., certificates, license, diplomas)

2) What records can/cannot be kept together?

Typically, the following files are all kept separate:

• Employee File
• Employee Medical File
• Child Support
• EEO Charges
• Exit Interview Form
• I-9 Form
• Litigation Documents
• Workers Compensation Claims
• Affirmative Action

3) How many separate files do I need?

The number of separate files you will have will depend on the information your company wants to maintain. Based on the list in #2, you may have that many different types of files. You will probably have an Employee Main File and an Employee Medical File (i.e., benefit enrollment forms, profit sharing, 401(k), insurance claim forms, COBRA letter). The Child Support, EEO charges, Exit Interview, I-9 Forms, litigation documents, Workers Compensation claims, and Affirmative Action files may contain all employees; a separate file isn't necessary for each employee.

4) How long should information be kept in these files?

• Payroll/Employee Records (3 years)
• Applications and any information related to internal or external placement/displacement (1 year)
• Where a charge or lawsuit is filed, all relevant information should be kept until the "final disposition"
• Contracts (3 years)
• ERISA information (6 years)
• Polygraph tests (3 years)
• Affirmative Action documentation (2 years)
• FMLA records (3 years)
• Tax Information (4 years from date tax is due or paid)
• I-9 (3 years after date of hire or 1 year after date of termination, whichever is later)
• OSHA information (5 years)
• Disability related information (2 years)
• Adverse impact found (2 years after eliminated)

5) What law or legislative act has this information?

A number of different acts apply to the retention of these files. Below is a brief list:

• Age Discrimination in Employment Act
• Americans with Disabilities Act
• Civil Rights Act
• COBRA
• Davis Bacon Act
• ERISA
• Employee Polygraph Act
• Equal Pay Act
• Executive Order 11246
• FLSA
• FMLA
• FICA
• FUTA
• OSHA
• Rehabilitation Act

Sources

"Federal Record Retention Requirements for Employees", by Wallace Bonapart and Cornelia Gamlem, SPHR

"Getting Started in Human Resources Management" by Joseph Bacarro, SPHR

Disclaimer: The recommendations and opinions provided by e-HResources.com, LLC are based on general human resource management fundamentals, practices and principles, and are not legal opinions or guaranteed outcomes. We strongly recommend, as part of a team approach to management, that clients consult with legal counsel of their choice to address legal concerns related to human resource issues