Maintaining employee records can be a time-consuming and arduous task. What pre-employment files should be kept in employee records? Should supervisor notes be included? Are electronic versions of mandatory records acceptable? These questions and many more were addressed by Jason Ritchie in a recent BLR webinar. Here’s a selection of the questions and answers.
Q. What would you suggest in terms of document retention for employee screening? For example, should we keep our notes on applicant reference checks and background check reports? I’ve heard it’s better to keep notes related to pre-hire screening at a high level, but to not keep the details.
A.It’s a good question. Unfortunately it depends on the quality of the information. If you have trained the individuals involved in reviewing the background information and attending interviews so that they know how to properly record the information, then it would probably be best to keep it all. If, on the other hand, you have concerns that the supervisors are not going to be putting the key information (or maybe including information they should not, such as an applicant’s inclusion in a protected class) into their notes, then of course it’s not as good to keep the detail there. It really depends on your comfort level with your supervisors and others involved. If the data is good, keep it all. If there’s concern, keep the basics but not all of the detail.
Q. I’m the officer manager for a small business (18 people). The partners have asked me to keep all records – including notes – of performance lapses and issues (even though these notes belong to the supervisors). Should a second file be created for these notes?
A.First I would recommend having some follow up conversations with the owners. Encourage them to assess whether the notes are truly significant enough to keep. If they are, they should be significant enough to incorporate into the formal documentation that can be shared with the employee. I don’t like the situation where you have a number of notes that are being kept in a separate (perhaps secret) file that the employee doesn’t know about—that is potentially problematic. If they resist, however, it would be recommended to go ahead and keep a separate file.
Q. With regard to equipment or assets issued, can a firm’s technology department keep a separate record of that outside the personnel file?
A.Yes, you can absolutely keep that outside the personnel file. You want to have a centralized function that handles personnel files. If you have a separate department that is keeping a particular record for everyone, it may make sense to keep it there and not necessarily transfer that to the personnel file. What you want to protect against, however, is a situation where you have files in many areas without control over them. Be sure you know where all files are at and that you have procedures and policies in place for maintaining those files.
Q. Can promotion documents, job title changes, and certificates of completion for work-related training be maintained in the desk file as opposed to the personnel file?
A.The answer, technically, is yes. However, best practice would be to transfer it to the official personnel file. That is to keep everything centralized with control. When you have that sort of information contained in desk files you may not have consistency for all employees. Each supervisor might do it differently. Legally you can do this, but it’s not best practice.
Q. Should copies of COBRA information be kept in your benefits files even if you have a COBRA vendor?
A.Yes. I would recommend keeping that information in the benefits file or personnel file even though you have a third-party vendor. Oftentimes if there is a claim or allegation of a failure to timely notify, that claim is actually asserted against the employer. You may have some indemnity agreements with the third-party administrator, but the technical claim comes against the employer. So, you want to keep that documentation so you can defend yourself and also so you can send it to the third-party administrator if an issue arises.
Q. Much of our records are kept electronically. Would a printed document from the electronic file suffice?
A.Yes. Most state laws and some federal laws recognize that an electronically stored document that is printed out is just as official as the original paper document. You want to make sure you have safeguards in place. You can always be challenged on authenticity and you want to be able to prove that the printed version is an exact replica of the original.
Q. How should verbal warnings be maintained? We currently use the same incidence form and mark it as “verbal” and then date it on the date the verbal warning was given. Do these have to be given to the employee and signed as well as written warnings?
A.No they do not have to be given to the employee and signed as written warnings. The key to this is, it is inappropriate to have information that is not shared. If this is merely documentation of a conversation that took place, it is certainly acceptable to have the documentation created by the supervisor immediately after the verbal warning and just keep the supervisor summary of what the verbal warning was. If you want to take it a step further you can, by showing it to the employee and noting it is just documentation of what was discussed. They could even sign off on it, but it’s not necessarily an absolute requirement.
Q. Can we move records off site after an employee has been terminated and keep them there for the duration of our document retention policy?
A.Yes. There’s no requirement to keep them on site after termination. You can store that information wherever you want as long as you can control access and keep it secure.
For more information on maintaining employee personnel records, order the webinar recording of ” HR Recordkeeping: Practical Strategies for Maintaining an Accurate and Efficient Records Trail.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Attorney Jason S. Ritchie is a partner at Holland & Hart LLP, where he represents clients involved in virtually all types of labor and employment disputes including claims of wrongful discharge, harassment, discrimination, breach of employment contract, and responses to state and federal investigations.