Q&A: Written complaints and recordkeeping requirements
For a private employer in Florida, if a client files a complaint against an employee in writing, should the complaint be filed in the employee’s personnel file or be filed separately, in a confidential folder that’s obviously connected to the employee but not kept in the same location as the personnel file?
We are not aware of any requirement under Florida or federal law that requires separation of a formal, written complaint or other disciplinary action by an employer against an employee from the employee’s personnel file. We are not able to provide legal advice, but in anticipation of litigation arising from the complaint, we believe there may be reason to separate the complaint from other records typically found in an employer’s personnel file for an employee in an effort to preserve confidentiality and/or “wall off” information and discussions that are attorney-client privileged.
Interestingly, employers are not legally required to maintain comprehensive personnel records per se, but if they create employment records about their employees, they must keep the information for certain periods of time in order to comply with federal and state employment laws. In addition, documentation about an employee’s job performance can help support personnel decisions, such as promotion, transfer, discipline, or discharge. Therefore, every employer should establish a formal system for gathering and maintaining required information on applicants, employees, and former employees. Most organizations keep three types of records relating to its employees:
1. Personal employment records, such as the employee’s personal identifying information, job application, pre-employment test results, resume, reference checks, offer of employment, employment contract, job description, performance evaluations, attendance and leave records, training and education, awards and letters of recognition, disciplinary action, compensation, personal status changes, receipts for employer-provided property to be returned upon termination (such as uniforms, handbooks, credit cards, and keys), and information pertaining to termination (such as the reason for the termination and record of the exit interview).
2. Records for human resources management, such as payroll records, benefits information, job descriptions, promotion, demotion, transfer, layoff, EEO-1 reports, I-9 forms, accident reports, employment policy receipt acknowledgments, grievances and complaints (including disposition or formal determinations), unemployment claims, and other legally required records).
Most employers keep employee Form I-9s in one file, organized chronologically by year, instead of in each employee’s individual file. Although not required by law, separating this information from individual personnel files ensures that the forms can be produced quickly and that federal investigators see only the Form I-9 information and not all of the employer’s files. This practice also helps keep supervisors and management from basing employment decisions on information about an individual’s national origin which is protected under discrimination law. For the same reason, employers should keep any other documents that identify an individual’s race, religion, national origin, gender, disability, or veteran status in a separate file (such as EEO-1 reports). In addition, records concerning an employee’s discrimination complaint or claim for workers’ compensation benefits should be maintained in a separate file. A supervisor’s access to this information may support an employee’s retaliation claim.
3. Employee medical records, such as participation in wellness programs, information relating to disabilities and accommodations, work-related injury reports, fitness for duty examinations, drug testing results, medical records of exposure to workplace hazards, and medical information related to leaves of absence. Medical information generally must be kept in separate, confidential files to comply with both the federal Americans with Disabilities Act and the Family and Medical Leave Act recordkeeping requirements.
Federal record retention requirements specify how long employers must keep certain employee information. Many HR and legal experts suggest that most personnel information be kept for a minimum of five to seven years from the date of entry into the employee’s file for compliance with federal antidiscrimination and wage and hour laws. Other information, such as payroll records and records of workplace accidents, may have to be retained for longer periods to show compliance with tax and safety laws.
Some basic information on each employee, however, should be retained for the employee’s entire term of employment, plus at least five to ten years after termination. Information in this category includes the employee’s initial job application, resume, results of background checks, offer of employment, employment agreements, performance evaluations, disciplinary actions, reasons for termination, records of benefits (such as pension and COBRA benefits), and eligibility for reemployment. This information may be necessary to make certain employment-related decisions, such as whether to rehire the employee, or to defend against challenges to employment decisions. Employers that anticipate challenges to certain decisions should retain pertinent information until the threat of legal action clearly has passed, regardless of any document destruction policy.
The design of a formal recordkeeping system varies with the size, needs, and complexity of the organization. Smaller employers can function effectively using hard copy files and forms from office supply firms, while larger organizations often use the more sophisticated human resource information systems (HRIS) developed by computer hardware and software vendors and outside service bureaus. Most federal laws generally do not specify the format in which employment records must be kept (i.e., paper or electronic), but the key issue to comply with these recordkeeping requirements is that, in addition to maintaining the records, the records must be accessible for review and be able to be produced when requested.
You will find information on federal and any Florida specific personnel record maintenance and retention requirements in HR Hero® , under Resources, Federal and State Topic Analysis, and under HR Administration, choose Personnel Records and click the green Next button. Choose Florida from the state drop-down menu on the right for state-specific information. In addition, under the heading Related Content in the upper left column, you will find helpful checklists and forms you may use to set up your employee files as well as training programs to help managers, supervisors, and human resources professionals understand their responsibilities.
Disclaimer: Any information BLR provides as part of the HR Hotline does not represent legal or any other type of professional advice and should not be used as a substitute for legal advice from a qualified attorney licensed in your state.
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