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.