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April/May
2005
 Spring
Cleaning: Do Your HR Files Need to be Sanitized?
It’s springtime!
Many of us get the “urge to purge” about this time of year,
wanting to slough off all those outdated, ragged-edged files that have
been lurking in filing cabinets and drawers. But before you haul out
the industrial-size garbage bags and start sweeping folders into them,
take a moment to strategize. There are good reasons to hold on to information,
and even better ones to get rid of certain types of information. The
information in those multitudes of file folders may be confidential,
outdated, or a violation of an employee’s rights. Here’s
how to ensure that your spring cleanup is done right.
Review Files
for “Confidential” Materials
Most information in HR files is confidential and should be kept locked
up. However, various state and federal employment laws (for instance,
the Americans with Disabilities Act) require even more than the usual
diligence. Generally, confidential materials must be kept in a separate
file that is apart from other personnel records. Employers may face
civil or administrative penalties if files containing confidential materials
about employees are not properly stored. As you are sorting through,
be on the lookout for any information that might indicate anything of
a financial or legal nature, or any other sensitive information, and
put that information in a special confidential file that is only for
the eyes of HR, legal, and/or someone with a demonstrated need to know
that information. Medical information must be kept in a completely separate
file from other personnel information, according to FMLA and ADA regulations.
Review Files
for Irrelevant or Illegal Information
Certain information about employees, like their religion or their family
plans, may not be used in making employment decisions. Files, particularly
those for long-term employees, might contain irrelevant or illegal information.
Having this information in a file may lead to the presumption that the
irrelevant or illegal information was used in a firing, promotion, discipline,
or termination situation. Any information that is protected by federal,
state, or local law should be placed outside of the regular personnel
file. Sometimes this type of information is included in more innocuous
documents—disclosure of a medical condition on an emergency contact
form, for example, or information about an employee’s immigration
status on an I-9 form. Again, if the information is in the file, the
case could be made that the information was used to make a decision
about an employee.
Compare
Files to Ensure Consistent Recordkeeping
Inconsistency in recordkeeping may in itself lead to discrimination
claims. For example, if a supervisor “builds a file” on
only certain employees, it may be easy for a jury to presume that the
special attention was for a discriminatory or illegal purpose. For the
most part, your employee files should contain the same or similar information
for each employee: information about the hiring, training, performance,
and compensation of that employee, as well as general employee information.
Even long-term employees’ files should be about the same thickness
as everyone else’s. Any information from more than five years
back is probably out of date and irrelevant by now anyway, and might
be deemed discriminatory today.
Review Your
Filing System and File Access Policy
Besides problems with disclosures of employees' confidential information
(e.g., medical records), there may be other problems with disclosures
of employees' private information (e.g., their home address or telephone
number). Files that are left unattended, unlocked, or otherwise exposed
to unauthorized individuals could lead to negligence claims or complaints
about invasion of privacy.
Question
Information That Might Surprise the Employee
Some experts advise that there should not be anything in a personnel
file that would surprise the employee. In other words, employees should
always be given a copy of everything that appears in their personnel
files. This is to prevent later complaints that certain information
is false or misrepresents events. Informal notes or warnings of managers
(or their unfounded suspicions and opinions) that have not been disclosed
to employees may later come back to haunt the employer or might make
it seem as though certain employees are being overly scrutinized.
Remove Materials
That Surprise You
Your files could be subpoenaed or exposed to outside authorities in
the event of a lawsuit or investigation. Make certain that everything
contained in your files is squeaky clean, without reference to anything
that might have legal protections!
Consider
Your Space Needs
Cleaning files might make you nervous: at some point you may need that
information. At a certain point though, you don’t have the space
to properly maintain HR records. The main concern with most records
is that the personnel files are accessible to a hiring manager who might
make decisions based on that information. Consider archiving off-site
any information that you think you may need access to at some point
in the future. This also solves many problems of maintaining the privacy
of confidential information. Review the recordkeeping requirements of
state and federal laws to be certain that you retain any required information,
but a five- to seven-year period is generally sufficient with the exception
of safety and health records. After that, it’s safe to purge most
records.
With these guidelines
for cleaning up files in place, your files will be the valuable tools
they are intended to be.
Reprinted
from Council’s HR Today newsletter. To subscribe or order
a free trial subscription, click
here.
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