What to Keep and When to Toss

Written by: Michele O'Donnell, M.S. Human Resources Management

At MMC, Inc. we regularly receive inquiries regarding personnel files and their contents, especially now, as employers are considering “spring cleaning” for the New Year. There are many reasons why proper record keeping is a requirement for employers. First and foremost, many items are required to be kept by employers by Federal, State, and industry requirements. In additional to the legal requirements, it simply makes good business sense to have accurate information easily available and organized as most business owners and managers will eventually encounter the need to produce documentation about employee performance and work history. Having the proper records to retrieve is vital when the need presents itself. 

There are some important cautions to be given about the subject of identifiable employee information. Generally, state laws permit employees the right to examine their personal employment records. This simply allows individuals the opportunity to confirm information in the file and identify any specific information which is believed to be incorrect. Employees are not universally guaranteed the right to copies of all file contents, however. As the employer, you usually have the right to control the time and location of these examinations as long as you are reasonable in doing so. These rules can vary from state to state and it is critical for you to know that rules that govern your organization.

For Example: In California, employees are legally entitled to any documents they have signed. This is not a requirement in all states. (To review the California requirements, please click Labor Code Section 1198.5)

Information contained in the personnel file should only be disseminated to those persons that have a legitimate reason to have that information, such as a supervisor preparing for a performance review. It is important to note that not all information related to an employee be kept in a main personnel file. There are certain items that employees are not entitled to review. The lists below should provide some guidance on what is and is not considered to be part of a personnel file.

Recommended Contents of Personnel Files

• job application and/or resume
• offer of employment
• IRS Form W-4 (the Employee's Withholding Allowance Certificate)
• job description for the position
• receipt or signed acknowledgment of employee handbook
• all performance related documentation such as; performance evaluations, disciplinary action forms, performance improvement plans
• forms relating to employee benefits
• garnishment or withholding orders
• forms relaying changes in payroll information such as; increase and decreases in pay
• forms providing next of kin and emergency contacts
• complaints from customers and/or coworkers
• awards or citations for excellent performance
• records of attendance; notes on attendance or tardiness
• completion of training programs
• contracts, written agreements, receipts, or acknowledgments between the employee and the employer (such as a non-compete agreement or an agreement relating to a company-provided car)
• documents relating to the worker's departure from the company
• exit interview form

Items That Should Not Be In a Personnel File

• I-9 form
• Equal Opportunity Voluntary Affirmative Action Information
• Medical Records including;
  o Physician records of examination
  o Diagnostic records
  o Laboratory test records
  o Drug screening records
  o Any of the records listed above in the discussion on HIPAA
  o Any other medical records with personally identifiable information about individual employees
• Investigation Records
  o Discrimination complaint investigation information
  o Legal case data
  o Accusations of policy/legal violations
  o Background investigation information
  o Personal credit history
  o Personal criminal conviction history
  o Arrest records

One of the most frequently asked questions are “How long do I have to keep an employee file once that employee has terminated?” There is no simple answer to this question as the record retention rules are governed by various state and federal regulations. As a general rule of thumb, if there is both a federal and state requirement to keep a certain document and they have differing lengths of time, the document should be kept for the longer of the two periods of time. Please review “Personnel Record Retention Requirements” for more guidance on this subject.

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