‘Personnel files’ can contain more than you think

Many a New Hampshire employer has been faced with the request by an employee to have a copy of the employee’s personnel file.

Typically, a human resources person pulls the personnel file folder, makes a copy and provides it to the employee. Simple enough? Not really. Some companies are finding out the hard way that records maintained by the company, such as by supervisors, and other records not contained within the employee’s personnel file folder itself, may also be a part of the employee’s personnel file that the employer is required to provide to the employee upon request.

On Jan. 8, the U.S. District Court in New Hampshire specifically held that notes taken by a human resources person during meetings with the employee and other company representatives should have been provided to the employee when he asked to review his personnel file.

In Dolan v. SunGard Securities Finance, the court pointed out that the definition of a personnel file, as defined by the New Hampshire Department of Labor, is broad and would encompass the human resources notes, which were taken during meetings with the employee about complaints by the employee against his supervisors and about the employee’s work performance.

The definition of a “personnel file” set forth by the Department of Labor regulation specifically exempts “recommendations, peer evaluations [and] notes not generated or created by an employer.” Additionally, some records maintained in a personnel file may not have to be provided for other reasons, such as privacy and confidentiality.

For instance, a detailed listing of sales numbers or customers within a personnel file could be redacted or removed on the basis that it contains confidential or proprietary information about the company. Or there may be names of co-employees, customers or other third parties whose names you may want to redact for privacy reasons.

The Dolan decision may come as a surprise to many supervisors who keep separate notes about employees and never turn them over to become a part of the employee’s official personnel file. When an employee requests to review, or have a copy of, his or her personnel file, supervisors are seldom informed. No effort is made to gather other documents that may legally be considered a part of the employee’s personnel file, even though the records are maintained in another location.

Mindful of the Dolan decision, companies should train supervisors so they will be aware that their notes about an employee and the employee’s work performance will likely be considered a part of an employee’s personnel file.

The company should develop a record-keeping system under which supervisor notes are periodically incorporated into employee personnel files or, at a minimum, that inquiry is made of the supervisor to turn over notes and include them in the employee’s personnel file at the time an employee requests to see, or have a copy of his or her file.

Typically, a personnel file will contain:

• An employment application and/or resume and the signed acknowledgements of the employee’s receipt of the company’s handbook

• Performance appraisals and other documentation of employee performance, such as disciplinary warnings

• Payroll and promotion records

• Compensation and benefits information, such as W-4s and beneficiary forms

• Copies of confidentiality or nondisclosure agreements

• Copies of employment agreements and non-competition agreements, if any

• Records of trainings, education or awards

• Supervisory or management notes about the employee such as regarding performance issues.

A little education

Care should be taken to maintain personnel file records in accordance with other legal requirements. For instance, pursuant to the Americans with Disabilities Act, which applies to companies with 15 or more employees, medical records should be maintained in a separate confidential file.

It also is recommended that other sensitive matters, such as a harassment investigation or workers’ compensation records, be kept in separate confidential files. I-9s and other employment verification information also should be kept in separate files. Some companies keep all I-9s in a central notebook, either alphabetically by name of the employee or by date of hire. All personnel records should be maintained in a locked cabinet or locked office.

Finally, upon a request by an employee to review his or her personnel file, a company should review the file contents to ensure that all of the records need to be produced to the employee.

It is recommended, however, that before a company removes or redacts records from an employee’s personnel file, legal counsel be consulted. It also is recommended that anytime a document is not provided to the employee, the employee is advised of its existence and the reason it is not being provided.

Companies would be wise to educate themselves and their supervisors that an employee’s personnel file includes most documents created or maintained by the employer concerning an employee’s work history and performance, no matter in what location such records are kept.

Linda Johnson chairs the firm’s Employment Law and Education Law Practice Groups at the law firm of McLane, Graf, Raulerson & Middleton. She can be reached at linda.johnson@mclane.com or 603-628-1267.