I think that all documentation should be kept in the HR department, but supervisors like to have copies for their desk files. What are the pitfalls of allowing supervisors to keep employee files at their desks? What practices can you recommend?— Stanley, HR Manager in Santa Barbara
HR professionals typically spend considerable time advising supervisors and managers to document performance issues regarding employees who directly report to them. Asking supervisors to send all of this documentation to the HR department every day seems logistically impractical if not impossible. Therefore, it is good practice for a supervisor to maintain a file for each direct report, often called a “desk file.” But it’s important for you to make sure that supervisors understand what they should and should not keep in their desk files—and why.
Personnel Files Are Expansive
Too often, supervisors take an unnecessarily narrow view of what constitutes a personnel file, mistakenly assuming that an employee’s personnel file is the one that the corporate HR department (or the HR director or office manager, depending on the organization’s size) maintains. This “official” file may contain the bare-bones information about the employee, such as his or her employment application, tax withholding forms, and performance reviews.
However, from a legal perspective, an employee’s personnel file encompasses all information relating to terms and conditions of employment, as well as information relied on to make employment decisions, such as compensation, promotions, and the like, which includes the type of information kept in a supervisor’s desk file.
This expansive view of a personnel file also includes documents that are typically maintained in separate files for privacy reasons, such as health benefits and medical information, workers’ compensation claims, and the employee’s Form I-9 regarding eligibility to work in the United States. Thus, if a legal claim or lawsuit arises regarding the employee, the expansive definition will be applied to what the employer must disclose in discovery.
A related issue arises with respect to information that must be made available to an employee who asks to review his or her personnel file. According to California Labor Code Section 1198.5, current employees have the right to inspect their personnel file at reasonable times and at reasonable intervals, with the exception of records relating to investigations of a possible criminal offense (which may include a sexual harassment investigation) or letters of reference. When an employee requests such a review, both the supervisor’s desk file and official file must be made available. A good practice is for HR to contact the supervisor when the employee requests an inspection and to review the contents of the supervisor’s file before making it available to the employee.
Electronic Files
Increasingly, supervisors rely on electronic records to communicate with their direct reports about work assignments, status checks, and job performance feedback. Many employees have supervisors who are in different offices, with little to no direct contact. How does this impact the supervisor’s desk file? Electronic documentation of an employee’s job performance is the same, and must be treated the same, as hard copy documentation. Supervisors should understand that any email or even voicemail communications are potentially items that must be part of their desk file for the employee. In fact, an entire desk file could easily be electronic. The key is to ensure that the information is retained appropriately and transmitted to HR as needed (for example, in response to an employee’s request to review his or her file).
Desk File Dos and Don’ts
Doctor’s notes and workers’ compensation claim information are frequent sources of confusion and often end up in a supervisor’s desk files. After all, employees tend to provide doctor’s notes to their direct supervisor rather than HR unless the organization has some other formal absence-reporting mechanism. Moreover, after the supervisor completes his or her report on a work injury, the logical place to keep the copy may seem to be in the desk file. However, any type of workers’ compensation documentation—and even innocuous doctor’s notes—should always be stored in a separate file. Inform supervisors to forward this information to HR and not keep it in their desk files.
In general, the following items should not be kept in a supervisor’s desk file:
- doctor’s notes or any other medical certification
- workers’ compensation claim documents, including the supervisor’s report on the injury
- any formal or informal legal claim by or about the employee, e.g., a discrimination or harassment complaint
- the employee’s Form I-9
- any workplace investigation materials regarding the employee
- background investigation reports
- personality or other test results
- any non-job-related information, e.g., personal information about the employee
In general, the following items should be kept in a supervisor’s desk file:
- observations about the employee’s job performance
- examples of the employee’s job performance and documents establishing the employee’s goals
- commendations and/or performance improvement documentation
- performance reviews
- attendance records and time-off requests
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As long as supervisors have clear guidelines on the type of information they should maintain and what should be forwarded to HR, their desk files can be an excellent management tool.
Mary L. Topliff, Esq., is principal of the Law Offices of Mary L. Topliff in San Francisco, specializing in employment law counseling, training, and compliance.