Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

New week. Same trial.

But with the new week comes some more new guest bloggers.  Each continues to talk about various employment law and human resources issues.

Today's guest blogger is no exception. Indeed, since coming onto the blog scene some months ago, John Phillips has been churning out post after post on topics as varied as where the presidential candidates stand on employment law issues to what we can learn from the New York Yankees.  His The Word on Employment Law , may not be as edgy as Stephen Colbert's segment on "The Word", but the blog is a very useful addition to the world of employment law and I encourage you to check it out.

In his "spare" time, John works for Miller & Martin and his full bio (with a hefty 33 years worth of experience) is available here.  And since Connecticut falls right on the Mason-Dixon line between Red Sox Nation and Yankees Country, it's nice to know John is squarely a Yankees fan. 

Today, John tackles the topic of what an employer should do when there is no documentation about a problem employee.

Have you ever been in this situation?

You've got to fire an employee. He simply can't cut it. You've tried to work with him. You've given him coaching, counseling. You should've fired him some time ago. He's not only doing a poor job. Now, he's hurting morale.

You've simply got to fire him.

But you don't have any supporting documentation. You meant to document his poor performance. You meant to document those counseling or discipline sessions. But you didn't. You'll just have to take your chances, because you can't put the firing off any longer.

A thought. There may actually be some documentation. Depending on what the employee's job is, there may be production reports that show the employee was routinely way below the production quota. There may be customer complaints. There may be emails from co-workers complaining of the employee's performance. There may be reports created by the employee that show his horrible communication skills.

You get the idea.

There may be documentation--not yours--but still good documentation that supports a discharge.

When you think the documentation cupboard is bare and you're in a pickle because you have to move forward with a termination, check another cupboard or two. You may find some documentation a lot better than anything you could have done yourself.

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A few weeks ago, I covered the basics of personnel files, in response to an article on whether there was a "crisis" in personnel file litigation.  But a few questions remain, so consider this the third part in a trilogy about personnel files.  In other words, once you determine what is and isn't supposed to be in a file, what are the action items for those files? 

Remember, each employer is unique so employers should always check with an attorney about implementation of any rule to ensure compliance with the laws that may apply.  Connecticut's law on personnel file can be found at Conn. Gen. Stat. Sec. 31-128a. 

• Can Employees Review and/or Copy Their Personnel File?
  Yes.
  • Employers must "within a reasonable time after receipt of a written request from an employee, permit such employee to inspect his personnel file....Such inspection shall take place during regular business hours at a location at or reasonably near the employee’s place of employment."
  • An employer is not required to allow such an inspection more than twice in any calendar year.
  • An employee has a right to a copy of his/her personnel file, although the employer may charge a reasonable fee for copying it. If an employer charges a fee for copying, it should do so consistently.
    
• What if the Employee Disagrees with the Information in the Personnel File?
  • The law provides that an employee who disagrees with any information contained in a personnel file may, with the employer’s permission, remove or correct the information. If the employee and employer cannot agree on removal or correction, then the employee can submit a written statement explaining his position and that statement must then become part of the personnel file.   The employer is NOT required to remove any aspect of a personnel file simply because the employee requests it.
    
• How Long Must You Keep Personnel Files?
  • Personnel Files must be kept a minimum of one year following termination.
  • Medical files must be kept for at least three years following termination.
  • Given the confidential nature of information in personnel and medical files, such files should be kept in a secure location (i.e., a locked file cabinet).
  • Beware, however. There may be situations where a personnel file must be kept longer, such as when there is a "litigation hold" on such personnel files. 
    
• What Else Should You Know About Personnel Files?
  • Consider doing an audit of existing personnel files to ensure compliance.  In that review, a company can check for offer letters, can separate out  I-9 forms, etc.
  • Always remember to keep medical and personnel information separate
  • Before producing a personnel file, the employer should review it to ensure its accuracy.
  • Personnel files can be stored electronically; the idea of a "paper file" may be antiquated for some employers.

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Last month, I suggested that there was not necessarily a "crisis" in personnel file litigation in Connecticut, because the rules for personnel files had long been established.  Given that this blog has been discussing document management policies this week, it would be fair to say, however, that many employers could do a better job managing and keeping track of personnel files.

In fact, a recent example in Illinois shows that preserving and protecting personnel files is a national concern.   

So, what is meant by a "personnel file"?  It may conjure up images of rows of file cabinets, but Connecticut has a specific law on the subject.  Connecticut defines a personnel file to include all documents and reports which:

are used or have been used by an employer to determine such employee’s eligibility for employment, promotion, additional compensation, transfer, termination, disciplinary or other adverse personnel action . . . including those relating to such employee’s character, credit and work habits.

In other words, “personnel file” includes any documents that are used to make decisions about the employee’s employment. Could this include e-mails which discuss the above? It very well might.  Could it include a supervisor's "desk" file? Sure. 

With me so far? Then it also important to also understand what is NOT included in a personnel file in Connecticut.  Specifically, personnel files do not include:

• stock option or management bonus plan records
• medical records,
• letters of reference or recommendations from third parties including former employers,
• materials which are used by the employer to plan for future operations,
• information contained in separately maintained “security files”,
• test information where disclosure of the information would invalidate the test, or
• documents that are being developed or prepared for use in civil, criminal or grievance procedures.

The most important part of these requirements to think about now in this day of electronic data is to make sure that electronic data that may be considered part of a personnel file is protected and preserved.  Many performance reviews are now done online; what efforts is the company making to preserve the integrity of these documents?

Without moving to a more modern view of a "personnel file" where electronic data is stored and treated the same as various paper documents, a company runs risks later for its failure to produce an entire personnel file. 

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