Personnel Files: More Than Just Paper in Folders?

By: Mario Hernandez

Legal Counsel to Commissioner Joe Esparza

Employers have a lot to keep up with at their workplaces. Whether it’s hiring, firing, promoting, demoting, warning, investigating, or anything else, documentation often follows. A common place to find this documentation is in the employer’s personnel files. So, what kind of considerations should employers keep in mind regarding personnel files?

Who Controls the Personnel File?

The general rule is that personnel files are the property of the employer. Sometimes we get calls on our employer hotline (800-832-9394) with questions about whether employers are required to provide copies of an employee’s personnel file to the employee upon request. Generally, the answer is no. However, if they so choose, employers may allow supervised access and copying of the file at the employee’s cost.

In addition, there are exceptions to the general rule. One exception pertains to public employees who are entitled to request copies of their personnel file under the Public Information Act. Another exception has to do with OSHA-required records of the employee’s work-related illnesses and injuries. For more information, please visit: https://efte.twc.texas.gov/personnel_files_details.html.

How Should the Personnel File Be Organized?

Employers have a lot of flexibility in the organization of their personnel files. However, pursuant to the Americans with Disabilities Act, an employee’s medical information and medical records must be kept away from the regular personnel files in a separate, confidential file. This includes any records pertaining to The Family and Medical Leave Act (FMLA) and Workers’ Compensation. Also, it would be a best practice for employers to keep I-9 records, safety records, and grievance and investigation records in their own separate, confidential files as well. For more information, please visit: https://efte.twc.texas.gov/personnel_files_general.html.

How Long Should a Company Keep Personnel Files?

A personnel file could contain a lot of different records, and different records can have different retention requirements. The general guidance is to keep all employment-related records for at least 7 years after the employee has left the company to exhaust most statutes of limitations related to common law causes of action in Texas.

However, there’s always an exception to the rule. That exception pertains to any records that deal with employees who have been exposed to hazardous materials. Employers are required to keep those records for at least thirty (30) years following the employee’s separation from the company. For more information, please visit: https://efte.twc.texas.gov/general_recordkeeping_requirements.html.

Other Considerations

The employer should develop a policy that controls who has access to personnel files. Since personnel files contain sensitive information, only those that need to access those files should have permission to do so. You can view a sample personnel files policy by visiting the following link: https://efte.twc.texas.gov/personnel_files_policy.html. In addition, employers should be aware that anything in a personnel file relating to an employee is discoverable in a claim or lawsuit related to that employee.

Conclusion

Employers should take care in the maintenance of their personnel files. By adopting best practices related to personnel files, employers will be in a better position to ensure that sensitive and confidential information will remain safe and secure.