Top Ten Tips Disclaimer
Only one type of record absolutely must be kept in a separate file apart from the regular personnel files: medical information (including FMLA and workers' compensation records) - that is because the Americans with Disabilities Act requires that any medical records pertaining to employees be kept in separate confidential medical files.
Still, it is a good idea to maintain other types of records in separate files as well:
I-9 records - keep these in a separate I-9 file because it will make it easier to defend against a national origin or citizenship discrimination claim if you can show that such information is available only to those with a need to know (in other words, that those who might have made an adverse job decision were not aware of the person's national origin or citizenship status) - keep in mind that non-I-9 records found in an I-9 audit could result in reports to other governmental agencies from the auditor.
Safety records - this safety record file might also contain documentation relating to an employee's participation or involvement in an OSHA claim or investigation - limiting access to such documentation would make it easier to keep the information from influencing possible adverse decisions against the employee that in turn could result in retaliation claims under OSHA.
Grievance and investigation records - maintain a separate file for these records because they often contain embarrassing, confidential, or extremely private information about employees that could give rise to a defamation or invasion of privacy lawsuit if such facts were known and discussed by others within the company - also, making it known that investigation records will not be divulged may make it easier to persuade reluctant witnesses to give frank and honest answers in an investigation.
The human resources department can develop a security access procedure for these various files - the company can keep an overview by cross-referencing in one file documents in another file - if a person who has access to one file wants to see another document in a separate file, he or she would have to have clearance under the file access procedure in order to do that.
Texas law does not require an employer to allow an employee to access his or her personnel file (exception: public employees may request copies of their personnel file documents under the Public Information Act) - however, most companies allow supervised access and copying of contents at the employee's cost - a company should never place anything in a personnel file that it would be ashamed to show other people (such as 12 average jurors) - remember, anything in any file relating to an employee is discoverable in a claim or lawsuit filed by or on behalf of that employee!
A federal regulation under OSHA contains an exception to the general rule that an employer does not have to turn over copies of a personnel file to employees or former employees. The OSHA rule in question is 29 C.F.R. § 1904.35, which requires a company to give employees and former employees access to OSHA-required records of their work-related illnesses and injuries, i.e., those medical conditions that would be covered by OSHA recordkeeping requirements. Generally, those documents would be OSHA Log 300 and the OSHA 301 Incident Report. "Access" includes copies. The deadline for the access or copies is the end of the next business day following the request, so there is no particular requirement for a 24-hour response. As the rule notes, the first copy of a covered document is free to the former employee or their designated representative, but subsequent copies can be furnished at a "reasonable charge". OSHA's help line is at 1-800-321-OSHA (6742).
Ownership and custody of personnel records generally pass from a predecessor to the successor in a situation involving the sale of a business.
For an example of a personnel files policy, click here.
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