California Employers Must Take Care To Avoid Document Dumping Into a Single File Folder

What constitutes personnel filing can vary wildly from company to company.  An alarmingly high volume of California employers are content to maintain a single file folder for each worker, the repository for any and all documents management deems relevant to that individual.

This is perhaps no surprise considering the California legislature does not fully define what constitutes a “personnel file” and many employers may be unaware of their obligation to maintain separate personnel files for certain sensitive or confidential documents.

California Labor Code section 1198.5 addresses employees’ rights to access their “personnel records” without defining the term.  Although the Labor Commissioner’s Office uses the terms “personnel file” and “personnel records” indiscriminately, it at least mentions the categories of records that are generally considered to be “personnel records” i.e., “those that are used or have been used to determine an employee’s qualifications for promotion, additional compensation, or disciplinary action, including termination.”

Examples of personnel records that may be kept in each employee’s main personnel file 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

However, employers should store the employee’s more private confidential information in separate files, including:

• Medical records, such as family medical leave documentation, doctor’s notes, workers’ compensation claims, and any other medical information
• Private financial records
• Equal employment opportunity records, such data regarding the workers’ racial or ethnic identity if the employer is legally required to prepare an equal employment opportunity report (the EEO1-Report)
• 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 (six 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.

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

Cindy Bamforth, June 3, 2016