Like any organization with more than one or two employees, roofing contractors should uphold the best practice of maintaining personnel files for each employee. A well-kept personnel file can be the key to defending against employment-related claims brought against a roofing company by a disgruntled or former employee. Rule of Thumb: Any document that would not assist with an employment decision is inappropriate for inclusion in an employee personnel file.
A personnel file not correctly conserved, which includes documents not appropriate for such records, may have the opposite effect of its intent, providing the basis for a successful employment-related claim brought against the company. Therefore, company leaders should become aware of which documents are appropriate to maintain within such records.
The best way to build an employee personnel file is to consider its purpose: maintaining records and documentation of evidence to defeat a potential employment-related claim, such as discrimination or harassment. Additionally, the verification and accuracy of such records are crucial. For example, a personnel file should not include any document not thoroughly investigated should an employee make accusations of discrimination or harassment that are just assertions, inferences or innuendo. Without corroborating facts that support such claims, those documents may help bolster an employee’s claim without merit.
What Should a Personnel File Hold?
Examples of documents that do belong in an employee personnel file include the employee’s application and resume, which would reveal the employee’s prior experience. These documents may support a defense against a claim that an employee was discriminated against in being passed over for a promotion, for example.
IRE 2023 Session Preview
Title: "Stick it in the File!": What Should and Should Not be Present in an Employee Personnel File
Speaker: Philip Siegel, a partner and shareholder with the firm Hendrick, Phillips, Salzman & Siegel, P.C.
Date: Wednesday, March 8, 9:30-11 a.m.
Room: Ballroom C3
Personnel files should also contain payroll information, pay rate and job title changes, disciplinary notices, attendance records, and performance evaluations. These documents provide memorialized information on employees' job performance, which may serve as the basis for employment-related decisions, including layoffs or raises.
Documentation of the employee’s acknowledgment of receiving a copy of the company’s employee handbook should also be included in a personnel file. The acknowledgment page can be used to prove an employee had access to the company’s harassment and discrimination policy in those instances where the policy’s reporting mechanism was not followed. That fact itself may help defeat a claim of co-worker harassment or discrimination.
Other examples of documents not to include in a personnel file include Form I-9s, Family and Medical Leave Act requests and related forms, and other medical or health insurance records. These documents often reveal the employee is in a protected category when the company would otherwise not know the employee is in a protected category when making an employment decision.
Employee personnel files should be maintained for the duration of employment and, with respect to some documents suggested for the file, beyond employment. For example, payroll records should be retained for three years. Records on which wage computations are based must be retained for two years. Based on Equal Employment Opportunity Commission regulations, documents pertaining to any personnel action must be retained for one year. Americans with Disabilities Act requests for reasonable accommodations must also be retained for one year. FMLA documents must be retained for three years.
Employee Access to Personnel Files
Individual state’s laws address whether employees are permitted access to personnel files. Where state law addresses employee access to personnel files, roofing contractors must follow the law. Where state law is silent, it is at the employer’s discretion to determine whether access may be permitted. Roofing contractors permitting an employee access to their personnel file would be wise to have a third party present with the employee when the file is being reviewed while establishing clear rules on access and whether documents can be copied from the file.
An employee personnel file can be useful in assisting to defeat employment-related claims if properly maintained and kept well organized. Conversely, a personnel file that is more of a “document dump” for roofing contractors, without considering what the proper components of a personnel file should include, may find a proverbial sword is double-sided. To avoid getting cut, roofing contractors are advised to consider the purpose and the contents of their personnel files.
The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.