Preparing Your Personnel Record System
Lesson Last Updated: September 14, 2023
Lesson Highlights
Personnel files are so important for protecting you as an employer. Let's make sure you know how to create them! In this lesson, we'll cover the following topics:
- What to include in your personnel records;
- Memorializing conversations for personnel records;
- How long to maintain your personnel records; and
- The right to inspect personnel record works in California.
What to Include in Personnel Records
All job-related documentation should be kept in an employee's general file of the personnel record. We know, this is sort of broad. Ask yourself: is this related to the employee's performance, knowledge, skills, abilities or behavior? If so, then into the general file it goes! This includes, but is not limited to:
- Recruiting and screening documents such as applications, resumes, diplomas and transcripts;
- Job descriptions;
- Employment agreements;
- Confidentiality/non-disclosure agreements;
- Records relating to job offers, promotion, demotion, transfer and layoffs;
- Letters of recognition and awards;
- Pay and compensation information;
- The employee's W-4 Form;
- Education and training records;
- Emergency contact information;
- Employee handbook and policy acknowledgments;
- Performance evaluations and goal-setting records;
- Warnings, counseling, and disciplinary notices (Note: if you have any employee with multiple disciplinary issues, this should be kept in a sub-folder, to keep from cluttering everything else up and so you can easily keep track of what you’ve recorded. And perhaps check out the Performance Management & Addressing Poor Performance section of this course!); and
- When it’s time to say goodbye, the termination/resignation notice and documentation.
It is important to note that certain types of documents in an employee’s file will contain sensitive information (e.g. anything with reference to a protected characteristic, financial history, and subjective statements or accusations, etc.) that must be kept confidential from view of unauthorized staff. This kind of “need to know only” information should be kept in a separate, confidential file:
- References;
- Background check results;
- Drug test results;
- Self-identification of race/ethnicity, gender, veteran, or any other protected class;
- Child support/garnishment information;
- Litigation documents;
- Complaints and workplace investigation records (although relevant disciplinary action, counseling, or
- other direct communications may be placed in the general folder); and
- Requests for employment/payroll verification.
The confidential file should also include immigration-related paperwork that is only shared on a need to know basis. Every employee will have an I-9, which falls under the heading of “immigration-related paperwork,” however, some employers choose to use a binder system for all employee I-9 forms, which is maintained alphabetically and separated by current or terminated status. This would be okay to do, as long as access to the binder is protected and remains confidential! If an employee has additional documents related to immigration (such as forms related to work visas or the visa application process), those should not go in the binder, but should be in the personnel file.
Medical records must be maintained separately from the general personnel file. In fact, the Americans with Disabilities Act actually prohibits employers from including medical information in an employee's general personnel file. [1] If you’re ever unsure if something is a medical record, you should default to “yes” if it includes any information about a health condition. Examples include:
- Benefit claims;
- Doctor’s notes;
- Accommodation requests relating to health conditions (including vaccination exemption requests);
- Medical leave records;
- Workers’ compensation claims; and
- Vaccination cards/passports.
And finally, anything related to the benefits each employee receives should be included in a separate folder. This is not just for the employee, but it’s also for you; in the event of an employee termination, you’ll need to be able to easily navigate the benefits termination process. These documents could include:
- Benefit enrollment forms;
- Beneficiary designations;
- Paperwork related to the CalSavers program; and
- Receipts of COBRA notices (required health insurance notices) sent to former employees.
A binder system could also be used for employee benefit enrollment forms that do not contain any information and forms that do not contain confidential medical information.
To recap, you should have:
- A general file, which can have sub-folders such as the benefits folder; and
- A confidential file, which may include sub-folders such as a medical folder and the immigration folder.
Memorializing Conversations for Personnel Records
Every conversation you have about an employee’s performance should be in writing. We know what you’re thinking: even informal verbal warnings? The answer is YES!
Even if the warning itself was not given in writing, it's still a good idea to document that the conversation took place and what the general nature of that conversation was. This can be crucial in protecting you, the employer, if there are additional issues later in employment that lead to disciplinary action or even termination.
If you have an in-person meeting, recap it at the end and put that document in the personnel file. Always include the who, what, where, when, and why of the conversation. Unless there's a clear legal reason to redact details, include everything; files can always be redacted later if necessary and appropriate, but we humans will forget these details over time if they aren't documented!
Even emails, texts, and instant messages that pertain to any of the items we touched on above should be captured and put in the personnel file. All of these protect you in the event of an investigation or a contentious termination. They can also help you defend yourself from unwarranted unemployment claims.
Need to write a written warning? Check out the lessons in the "Performance Management & Addressing Poor Performance" section of this resource.
When in doubt: write it out!
Maintaining Your Personnel Records
There are different guidelines for maintaining different types of employee information, which can make maintaining personnel records rather difficult for most employers. The general recommendation is to keep personnel records for no less than three (3) years after the date of employee termination, which is in line with some requirements of the Labor Code. [2] However, elsewhere in California law, there is a requirement that every employer “maintain and preserve any and all applications, personnel, membership, or employment referral records and files for a minimum period of four (4) years after the records and files are initially created or received.” [3] Additionally, the longest statute of limitations for a wage claim in California is four (4) years. [4]
Because of this, an employer should generally maintain their personnel records for at least four (4) years after the date of employee termination. However, if you can keep employment records for longer than four (4) years, great! If you can afford to use the space on your computer server, or wherever you keep these records, we’d suggest holding onto these records for as long as possible, just to be safe.
The Right to Inspect Personnel Records in California
You, as the employer, have a legal duty to maintain and make available for inspection the files pertaining to every employee.
Employees are allowed to review the portions of their employee file that are used or have been used to determine an employee's qualifications for promotion, additional compensation, or disciplinary action, including termination. Examples include, but are not limited to:
- Applications for employment;
- Payroll authorization forms;
- Notices of commendation, warning, discipline, and/or termination;
- Notices of layoff, leave of absence, and vacation;
- Notices of wage attachment or garnishment;
- Education and training notices and records;
- Performance appraisals/reviews; and
- Attendance records (timesheets!).
All requests by employees and former employees to inspect their file must be made in writing and if the request is indeed made in writing, then the employer will need to comply within thirty (30) calendar days of the request. Copies of the file can either be picked up by the employee or former employee at the workplace, or by mail to an agreed upon address. [5]
Note: Files may also need to be released to comply with applicable law (example: reporting workplace viral outbreaks to the local health department) and to cooperate with law enforcement (example: wage garnishment orders in effect). However, the names and personal information of any nonsupervisory employees (other than the employee or former employee in question) may be redacted in most of those situations to maintain privacy.
And just as a quick closing anecdote, you may be thinking to yourself, “well if I don’t maintain personnel files, I won’t have to abide by any record keeping or inspection rules!” Don’t do that. That way of thinking helped us secure over $10,000.00 in severance pay for one of our clients, who was not given their personnel file when requested because the employer alleged there were no files after the employee had been fired for alleged poor performance… It was not a pretty situation, and you don’t want to end up in a similar position!
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