We threw all the documents into one file.
Time to reorganize.
Employers should maintain certain personnel records separately. Employee medical records (such as doctor’s notes supporting leave requests) should be kept in a confidential file, for privacy and regulatory reasons. In the era of COVID-19, employers should also take care when storing employee data collected through health screening. Immigration data and I-9 forms should also be kept in a separate file.
I’m in litigation and was asked to produce the employee’s personnel file. But all the performance records are stored in a former employee’s email outbox on a hard drive in storage. What now?
In the heat of the moment, employers often forget to update their personnel files with key performance documents. It’s important to make sure the performance-related documents that you compile and prepare in advance of a termination (preferably with input from counsel) are properly stored in the employee’s personnel file. Otherwise, you might be scrambling to find key evidence, or worse, risk losing it.
“Oops, we threw it out!”
Employers should take care to ensure they are following best practices for record retention. These vary by location and the nature of the documents. Employers should make sure that all key stakeholders—HR, IT, and others—are aware of their record-retention obligations.
“Oops, data breach!”
It almost goes without saying, but it’s really important to ensure your personnel records are secure. In addition to the obvious employee privacy concerns, personnel records are your lifeline in the event of a lawsuit (assuming you’ve consulted an employment lawyer and are following best practices for performance management and documentation). In addition to properly securing these records, in the event you destroy them (which we recommend you do only after consultation with counsel), the hard and electronic copies need to be properly disposed of as well.
“I got a request for employee data from a law firm and I turned it over. Their letter looked so official!”
If you get a request for employee records or data, you should first check to see if you’re obligated to turn it over. Some states require disclosure of personnel files to employees themselves or their representatives; others don’t. Be sure you know the rules for your jurisdiction. And some requests may be required by court order (such as a subpoena) while others may simply be a request with no obligation to respond.
Employers should be mindful of privacy concerns and take a practical approach to these types of requests. For example, if it’s a third-party request for information about a current employee, it’s usually a best practice to let the employee know about the request so they are not surprised. Employers should plan ahead and have a process in place for these types of requests, so they’re not scrambling to figure out how to (or if they should) respond to a time-sensitive request.
If you have any questions on this topic, please contact the author Jessica Shpall Rosen or your personal Greenwald Doherty attorney contact.