My question is embarrassing. We have lost an employee’s file. We just can’t find it. We’ve been able to reconstruct the standard HR paperwork like appraisals. But what about the forms and agreements the employee fills out and signs? Should we give them the paperwork all over again to fill out? If they refuse, what do we do? — Anonymous
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We sent this red-faced manager’s question to Allen Kato.
This is an interesting issue. First, there are certain records that I would absolutely advise that HR ask the employee to re-execute or fill out again. For instance, if the emergency contact information is missing, HR should obtain that information.
The issue becomes a little trickier, for instance, with an employee invention assignment and proprietary information agreement that the employer normally has the employee sign on the front side of the employment relationship at the time of hire. Now, in the middle of the employment relationship, the employer must attempt to get the employee to re-execute the agreement. If the employee signs the agreement but later challenges the validity of the agreement after his or her termination, the employer potentially faces a troubling legal predicament. The employee may credibly argue that the agreement, signed months or years after his or her hire, should not be effective or enforceable–for example, to assign inventions invented earlier in the employment relationship before the employee re-signed the agreement. To address that concern, the best solution I can suggest is to have the employee re-sign the agreement, using the current date, but HR should attach a cover memorandum explaining that the employee originally signed the agreement at the time of hire and the original has been lost.
Another variation of the same problem arises if the employee simply refuses to re-sign the agreement at all. In that case, especially where the employee is involved in company inventions or has access to trade secrets, it may be necessary to terminate the employment rather than risk going forward without a valid invention assignment and proprietary information agreement. Further, whether the employer continues the employment relationship or not, the employer is faced with the fact that it does not have a signed agreement should the employee dispute an invention assignment or misuses the employer’s proprietary information in the future. Here, the best solution that I can suggest is that HR write a memorandum to the employee explaining that the parties entered into a valid agreement at the time of hire, the original has unfortunately been lost, but that the employer considers the employee to be bound to its terms.
This example about the consequences of a lost invention assignment agreement is probably just the tip of the iceberg of possible legal problems arising from a misplaced personnel file. Bottom line, employers should take necessary steps to prevent the loss of these important records.
Allen M. Kato is an associate at the San Francisco office of law firm Fenwick & West.