While there is no federal or state requirement that an employer maintain personnel files, employers are required to keep certain records to comply with various laws and regulations. The overriding concern is to balance employee privacy and the employer’s need to know while still managing to keep good records.

According to the Society for Human Resource Management (SHRM) standard operating procedures, the following items should be kept in separate files:

• Medical Records—the Americans with Disabilities Act requires employers to keep all medical records separate. Many states have privacy laws to protect employees. All medical records including physical examinations, medical leaves, workers’ compensation claims, and drug and alcohol testing must be kept separate. (See Glossary for a detailed definition of this act.)

• Equal Employment Opportunity—to minimize claims of discrimination, it is important to keep source documents that identify an individual’s race and sex in a separate file. Additionally, if internal/external charges are investigated, it is also recommended that these files be maintained separately.

• Immigration (I-9) Forms—it is recommended that these forms be maintained chronologically by year. Keeping this information in a separate file reduces the opportunity for an auditor to pursue and investigate unrelated information. (See Glossary for more information and a definition of I-9.)

• Invitation to Self-Identify Disability or Veterans Status—this information is required to be maintained by federal contractors. Laws prohibit employment decisions based on certain protected classes; however, managers have the right to access an employee’s file for a number of operational issues.  Unless there is a need to know for accommodation purposes, these files should be maintained separately to reduce a potential source of bias.

• Safety Training Records—Occupational, Safety & Health Administration (“OSHA”) may audit a company’s training records; keeping this information separate will protect the employer from an auditor pursuing and investigating other information in the personnel file.

Remind all employees that personnel records contain information that is very confidential and/or sensitive and should be handled very carefully.

Penalties for not following record retention guidelines can vary, depending upon the law or regulation they cover as well as the information they protect.

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