EMPLOYMENT LAW BULLETIN

Vol. 02, No. 05

Courtesy of Eskridge Law, Attorneys at Law

In the wake of the Enron paper-shredding scandal, companies of all sizes are reviewing record keeping and retention policies, including policies pertaining to personnel records. However, much uncertainty abounds as to who has legal access to employee records and under what circumstances. Employers would be wise to develop a policy on access to personnel records and assure that it is implemented by staff and managers. The following is an overview of best practices for assuring that legally required records are accessible while, at the same time, employee privacy rights are protected.

Personnel Files
Access to personnel files should be restricted to those with a need to know. Labor Code §1198.5 entitles an employee to inspect his or her own personnel file. Labor Code § 432 requires that an employee be given a copy of any document signed by the employee. However, it is nevertheless imperative that personnel file be kept in a location where unauthorized inspection is virtually impossible.

Restrictions On Access To Employment Records

Employee records that contain information protected in some way and that do not impact every day decision-making regarding the employee should not be kept in the personnel file. Not all employee records are subject to employee inspection under Labor Code § 1198.5, and as such should be kept in a separate file. These include records relating to the investigation of a possible criminal offense and letters of reference. It is also recommended that equal employment opportunity data such as race, gender and age discrimination, harassment claims and documents that relate to such claims be kept in separate files.

Medical Records

Both federal and state statutes strictly limit access to employee medical information, including physical exams, medical leave documents, workers' compensation claims, and drug and alcohol testing. Therefore, such documents must to kept in a separate, confidential file, rather than in the personnel file.

I-9 Immigration Forms

The Immigration Reform and Control Act (IRCA) which requires documentation of eligibility to work in the United States at the time of hire, provides that Employee Eligibility Verification forms (I-9s) be kept for three years after the date of hire or one year after the date of termination, whichever is later. The best policy for keeping these forms would be to file them altogether for all employees on a chronological basis.

This facilitates accessibility in the event of a government audit and assures the auditor sees only documents relevant to the audit.

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What items should properly be kept in personnel files in view of the above restrictions? We suggest the following: application and resume; college transcripts; offer letters; job descriptions as well as records relating to hiring, promotion, demotion, transfer, layoff, rates of pay, compensation, education and training records, letters of recognition, disciplinary notices, performance evaluations, exit interviews and termination records.

Eskridge Law, Attorneys at Law, may be contacted by phone (310/792-7021), by fax (310/792-7022) or by e-mail (geskridge@ealaw.net). Please visit our web site at ealaw.net or employmentattorneys.net.

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