Sound Management Practices For Personnel Documentation

As California supplies no specific definition for required personnel records, it falls to company management to judge what constitutes adequate documentation that reliably reflects each employee’s work history with the company.

Labor Code section 1198.5 addresses employees’ rights to access their “personnel records” without defining the term. The Labor Commissioner refers to “personnel files” and “personnel records” interchangeably but only names categories of papers generally considered to fall within these terms: “those that are used or have been used to determine an employee’s qualifications for promotion, additional compensation, or disciplinary action, including termination.” The Commissioner also offers “some examples,” including employment application; performance evaluations; promotion, pay rate, discipline, and termination notices; and attendance records.

Employers should not limit their recordkeeping practices to this handful of suggestions from the state.  A wider range of items to be kept in each employee’s main personnel file might include:

• Job application and resume
• Background and reference checks
• Job description
• Job-related testing results
• Orientation checklist
• Emergency contact
• Signed receipts of company handbook and other company policy
• Attendance and absence records
• Education and training records
• Payroll authorization or modification paperwork
• Employment agreement and/or non-disclosure agreement
• Arbitration agreement
• Disciplinary records
• Performance evaluations and commendations
• Termination records

Worker privacy requires several other worker-related items to each be maintained separately, including:

• Medical records, including family medical leave documentation, doctor’s notes, workers’ compensation claims, and any other health-related information
• Private financial records
• For those enterprises who must periodically submit EEO-1 reports (generally, employers with 100-plus on payroll), supporting equal employment opportunity records including workers’ racial or ethnic identities
• Investigative files or litigation documents, such as those pertaining to harassment, discrimination, retaliation and whistleblower claims

Retain all personnel records, confidential and otherwise, for at least four years after the employment relationship ceases.  Documents requiring even longer retention periods include ● pension and welfare plan information (five years); ● first-aid records of certain job injuries causing loss of work time (five years), and safety and toxic or chemical exposure records including safety data sheets (30 years).

Employers should periodically review and update company policy and procedures that establish: (i) who will maintain the company’s personnel records; (ii) how and where to store all such records; and (iii) how to protect the records from unauthorized access, removal or destruction.

Note: By contrast, federal and state laws are explicit on required payroll-related records.  See, U.S. Department of Labor Fact Sheet #21: Recordkeeping Requirements under the Fair Labor Standards Act (FLSA); California Division of Labor Standards Enforcement (DLSE) Enforcement Policies and Interpretations Manual, August, 2019, section 4 “Time Record Requirements”; and Employment Development Department (EDD) 2020 California Employer’s Guide, p. 78, “Recordkeeping.”

For more information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles

Cindy Bamforth

August 14, 2020