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What should and shouldn’t be in your personnel files at work?

Posted on December 7, 2018

Personnel files used to be kept in file cabinets that filled rooms. Now, many of them are digitized. Either way, employers need to be careful about what information they keep in an employee’s file.

Even though access to these files should be strictly limited, the information in them must be factual and unbiased. For example, documentation of an allegation made by a colleague, manager or anyone else that was not pursued or proven should never be in an employee’s file.

Neither should anything that amounts to gossip, offensive comments or even an opinion about something not relevant to an employee’s work. Unsubstantiated conjecture (“I think she’s failing to meet deadlines because she has a drinking problem”) doesn’t belong either.

The same is true for files kept on applicants who weren’t hired. In one case, a note was found in an applicant’s file that said, “Possibly too fat to get up and down the stairs as needed.” Information gained on an applicant through background checks and references needs to be kept separate from documents like their application and resume.

Companies need to set up protocols for employee files based on state and federal laws. Anyone with access to those files needs to be trained to maintain and access them appropriately. For example, to comply with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) laws, employers need to keep notes from doctors related to an employee’s medical condition separate to provide required privacy.

It’s typically best to avoid having supervisors’ notes about employee performance in the company personnel files. Supervisors should maintain their own files. However, even those shouldn’t include opinions and hearsay. If an employee were to file a discrimination suit or take any kind of legal action, all files on them could be subpoenaed.

Too many managers and even human resources professionals don’t adhere to the law or even basic guidelines. They just throw everything into a file or add any email they get to an employee’s or applicant’s online records. If you take legal action because you believe you’ve been the victim of discrimination, harassment or wrongful termination, your Arizona employment law attorney may be able to access information in your employer’s files that could sustantiate your case.