December 29, 2015

Preservation, Safekeeping and Retention- Part 2

Preservation, Safekeeping and Retention – Part 2

The second installment of city personnel files will look at what should be contained in the different files and what within those files is subject to open records. Whether your personnel files are retained electronically or in paper form, most cities have at least four or five separate employment record files for each employee, which include:

  • The main personnel file;
  • The medical/confidential file;
  • Drug testing results;
  • Payroll records; and
  • Form I-9 files.

The main personnel file will contain employee performance evaluations, training information, handbook and drug testing acknowledgements.  The following list will assist in applying the Open Records Act to information in the main personnel file:

  • Name and current address:
    • Name – subject to open records
    • Home address – not subject to open records
  • Completed and signed Employment Application Form:
    • A public employee's name as well as portions of the employee's resume and or application reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment are subject to open records.
    • A public employee’s home address and anything that would be considered personal in nature would not be subject to an open records request.
  • Date of birth – not subject to open records
  • Social Security number – not subject to open records
  • Date of employment – subject to open records
  • Position title – subject to open records
  • Departmental assignment – subject to open records
  • Salary – subject to open records
  • Record of awards, if timely – subject to open records
  • Disciplinary action, if timely:
    • Once final action has been taken this is subject to open records.  There can be exceptions to some of this information.  For example, if the discipline occurred in regards to a sexual harassment complaint, it is possible to keep the identity of the complainant from being disclosed.  This would need to be reviewed on a case-by-case basis and should involve the assistance of the city attorney. 
  • Completed training programs – subject to open records
  • Past changes in employment with the city, such as demotions or promotions – subject to open records

The medical/confidential file contains all information related to an employee’s medical condition, including pre-employment testing results, workers’ compensation information and FMLA forms.  It can also contain any other confidential information such as background or credit checks.  None of the information in this file is subject to open records.

Drug testing results are required to be kept in separate files and are confidential and not subject to open records.  Only those with an absolute “need to know” should be granted access.

Contents of the payroll file will include W-4s, state withholding forms, garnishments, pay information, wage deduction acknowledgements and time-keeping records.  All time-keeping records and salary information is subject to open records, but anything related to deductions, garnishments, or marital or family status would not be subject to open records.  W-2s and 1099s are also subject to open records; however, the city would have to redact any personal info such as Social Security numbers, home address, child support obligations or any other deductions. 

Form I-9 and any relevant documentation should never be left in an employee’s personnel file.  It is recommended that all employee Form I-9s be kept in one file in alphabetical order.  This allows easy access if the Department of Labor decides to review them.  Also keep in mind that this information is confidential.  As with all confidential information, access is highly restricted and never subject to open records requests.

Also, keep in mind that additional files may be necessary to maintain hiring records, investigations, equal employment opportunity (EEO) documents as well as other employment-related documents. Cities must give special consideration to where and how they maintain these files, limiting access to only those with a need to know and protecting applicants and employees from discrimination, identity theft and breach of privacy. 

Any city that is required to maintain equal employment opportunity (EEO) data collection should keep this information separate from personnel files and used only for reporting purposes such as for an affirmative action program (AAP), the Form EEO-1 and internal diversity tracking.  Similar to the Form I-9, it is best to keep all forms in alphabetical order in one file.  Never allow EEO records to be attached or kept with other hiring or employment records.  This information is also not subject to open records.

If you receive a request for something in a personnel file that is not addressed in this article, contact Andrea Shindlebower Main, personnel services specialist, KLC Legal Department. Next week, Part 3 will look at how to handle files of employees who are no longer employed by your city and those that were not hired by the city.