The Issue: Can employers reduce risks of
potential claims of discrimination and retaliation by employees
through thoughtful management of personnel files?
The Solution: Yes. One of the many steps
that employers can take to reduce risk of litigation is to ensure
that documents that do not belong in a personnel file are kept
in separate files and locked up.
Analysis: Discrimination claims come in
many forms, including, race, gender, sex, sexual orientation,
national origin, religion, mental or physical disability, or
pregnancy. One of the most effective ways to reduce
legitimate employment discrimination cases is for employers to
expend the necessary resources to properly train their workforce,
starting with management level employees. As part of that
training, employers should be mindful of the types of documents
that should be in personnel files and those that should not, but
should be maintained separately. The rule of thumb is that
employers should keep documents containing subjective information
separate. This is because when managers make personnel
decisions about an employee and the file contains information about
protected characteristics of that employee, such as race, age,
medical condition etc., the file may serve as circumstantial
evidence in a discrimination claim against the employer.
Documents That Belong In A Personnel File: Any
objective information related to the hiring, promotion, demotion,
compensation, discipline or discharge of an employee, including,
but not limited to: application; resume; offer letter; performance
reviews; disciplinary notices; termination letter; resignation
letter; compensation and deduction information; acknowledgment of
receipt of handbooks; attendance records / receipt of vacation and
personal leaves; change in name, address, telephone number;
beneficiary regarding insurance provided by company; emergency
contact information; and training records.
Documents That Do Not Belong In A Personnel File But
Kept Separate: Any subjective information regarding the
employee, including, but not limited to: subjective notes about the
employee during the interview process, on application, resume etc.;
reference checks or letters of reference; documents pertaining to
other investigation of the employee; credit reports; immigration
and naturalization information (I-9 Forms); medical files of any
records informing of a medical condition, including drug test
results; wage garnishments; any
photos of employee, including photo of driver's license,
passport etc.; and EEO forms.
The file should not be available to supervisors who have no
legitimate need for it.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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I was recently reviewing the Department of Fair Employment and Housing's Annual Report (don't you wish you were me?), and saw that the DFEH received 17,632 complaints of employment discrimination in 2014. Of those, 12,344 (70%) alleged retaliation.