Personnel Files

A personnel file is one of the most relevant pieces of evidence in bringing or defending an employment-related claim.

What should be in the file?

 - Pre-employment documents, such as the employment application, resume, background check information (including notices and authorizations under the Fair Credit Reporting Act when applicable), college transcripts, offer letter, new hire reporting, and copies of any relevant licenses.

- Job description, which should include a statement of relevant qualifications and essential and non-essential job functions.  Job descriptions are relevant to claims for discrimination based on disability or religion, and failure to accommodate, as well as claims for mis-classification as exempt under federal and/or state wage and hour law. 

- Employment records related to hiring, promotion, demotion, transfer, layoff, rates of pay, compensation, and education and training. 

- Agreements, such as employment agreements, confidentiality agreements and other restrictive covenants.

- Emergency contact information.

- Records relating to employment practices and policies, such as acknowledgement of receipt of the company's employee handbook and non-harassment policy and record of attendance at company harassment avoidance training.  Such acknowledgements are very helpful in proving that an employee was on notice of employer prohibitions against harassment and discrimination, as well as reporting procedures.

- Disciplinary notices or warnings.  It is difficult to defend a performance or behavior based adverse action in the absence of any documentation.

- Complaints or compliments.

- Performance evaluations.  See "Evaluating Employee Evaluations" posted April 13, 2009 for more on the importance of performance evaluations.

- Exit interviews

- Termination records, including a separation agreement.

What should not be in the personnel file?

- Medical records

- EEO data

- Immigration forms (I-9)

- Safety training records

These should be maintained in separate, confidential files.

Who should have access?

Whether or not an employee has a right to see his/her personnel file differs from state to state.  In some states, employees may have a statutory right to access and possibly copy their file.  Even in the absence of a statutory right, some courts have recognized a claim for retaliation when an employee has asked to look at his/her file when seeking information regarding an allegation of discrimination or harassment.

Supervisors with a need to know should have access to personnel information, and possibly medical information when implementing a request for reasonable accommodation of a disability.

Employers also should keep in mind that auditing or investigating agencies, such as the EEOC, INS,  OSHA,and state and federal Departments of Labor also may access personnel files.  In addition, if an employee brings a claim, his/her personnel file may be discoverable, as well as the personnel files of other, relevant employees and even the employee' s supervisor.  Employers should keep these eyes in mind.