May 5, 2019

Everyone remembers the Enron paper-shredding scandal.  The aftermath of this scandal left companies of all sizes reviewing their record keeping and retention policies, including policies pertaining to personnel records.  However, much uncertainty still exists 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.  California Labor Code section 1198.5 entitles a current or former employee to inspect and receive a copy his or her own personnel file.  An employee’s personnel file includes documents that the employer maintains relating to the employee’s performance or to any grievance relating to the employee.  [Lab. Code § 1198.5.] California Labor Code section 432 requires that an employee be given a copy of any document signed by the employee.  However, it is nevertheless imperative that personnel files 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 California Labor Code section 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 be kept in a separate files.  Entries that do not directly relate to an employee’s job performance and qualifications should not be included in the employee’s personnel files.  Generally, discrimination and harassment claims and documents that relate to such claims should 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.

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.

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net).  Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.