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This is a guest post from Noah A. Frank. He practices labor and employment law at SmithAmundsen LLC, a law firm comprised of more than 170 attorneys in the Midwest. The firm handles the transactional, labor and employment, and litigation needs of companies across the U.S. For more information, visit www.salawus.com. Mr. Frank may be reached directly at email@example.com.
Nondiscrimination and privacy laws make recordkeeping a daunting task. Here are some compliance tips for today’s highly legislated and regulated business world:
KNOW THE FILE TYPES
Not all files are the same.
A Personnel file contains documents used to determine qualifications for employment (e.g., promotion, transfer, compensation), discharge, and other discipline. Therefore, do not include records indicating protected characteristics – race, religion, marital/dependent status, date of birth (age) and the like - because this information should not determine an employee’s qualifications. In some states, like Illinois, employees have the right to inspect personnel files, and even submit rebuttals! Typically, there are limits to frequency of reviews and the types of records which may be reviewed.
Secure Payroll/Confidential files maintain sensitive personal and financial information, such as date of birth, Social Security Number, financial account information, marital/familial status, wage garnishments/assignments, and self-identifying of race, disability or veteran status records. While subject to discovery in litigation, these files are typically not subject to personnel records review.
Medical files house FMLA and other medical absence records, requests for disability accommodation, and other personal health information. Safeguard these files on a strict need-to-know basis; direct supervisors should almost never have access to a subordinate’s medical file.
Use separate files for each investigation (sexual harassment, theft, or other) and Workers’ Compensation accident. All Forms I-9 should be stored in one file.
PERFORM A FILE AUDIT
Given the increase in employment litigation, good file hygiene is a must: