HR Recording Keeping Tips & Techniques - Recorded June 12, 2009

Q & A HR Record Keeping Tips & Techniques

On June 12, 2009, The Payroll Company HR (TPCHR) held a webinar titled “Human Resources Record Keeping Tips & Techniques.” The feedback from the session was great and we thank the attendees for their enthusiastic participation. To help in the learning process, following is a list of questions were received during the session. We have included our responses. As stated in the webinar, there is no ‘one size fits all” when it comes to recordkeeping. 

When performing HR Audit services for clients, TPCHR reviews and makes recommendations regarding proper recordkeeping, as well as your entire human resources function. Separately, we can answer most HR-related questions through our First Call services. Please feel free to contact TPCHR with questions regarding these or any other Human Resources services.

·         Application materials

·         New hire reports

·         General employee information such as names, address and phone number

·         Job history: record of promotion, demotion, transfer, layoff and recall records

·         Position/job description

·         Performance evaluations

·         Disciplinary notices and documentation

·         Education and training records, except OSHA training records

·         Payroll action forms

·         Pay withholding authorizations

·         General attendance records

·         Vacation requests

·         Wage/Salary records

·         Letters of commendation

·         Checklists: New Hire, Termination or Exit Interviews

·         Employment contracts, including non-competes and confidentiality agreements

·         Signed receipts for documents and training

·         Reference check and background check information

What are the types of things you do not want in “THE” personnel file?

·         Medical Records

·         Immigration (I-9) Forms

·         Equal Employment Opportunity; for example, the Invitation to Self-Identify Disability or Veterans Status

·         Safety Training Records

·         Personal speculation about an employee’s physical or mental condition.

·         Statements implying underlying facts (e.g., this employee is a thief), unless the underlying facts are confirmable.

·         Coding of other information that may identify protected status.

·         Employees' off-the-job behavior.

·         Credit information.

·         Arrest records.

·         Union records.

·         Political affiliations.

·         Stray marks or doodles.

“In general, anything that could be the basis of discrimination or may be restricted from the employee”

·         Medical records/forms

·         Benefit enrollment forms (health, 401k)

·         Leaves of absence requests

·         Drug and alcohol test results

·         Interview notes

·         Reference reports

·         W-4 and WT-4 form

·         Arrest or conviction record

·         Anything that identifies an employee’s protected characteristics such as, but not limited to race, sex, religion, disability, marital status, dependents, etc.

SESSION QUESTIONS AND FOLLOW UP ANSWERS

QUESTION: In talking about all the different things to place in a confidential file, is it OK to place all confidential info into 1 file-for things such as medical information, W4, interview notes, etc.?

ANSWER: Yes. That is recommended. One Confidential/Medical File for each employee.

QUESTION: For clarification, keep workers comp, self-identification, and immigration status documents for all employees in one binder and medical files and personal files separately for each employee?

ANSWER: No. That is not recommended. What is recommended is separate (1) Personnel Files and (2) Confidential/Medical files for each employee. Further, I-9s for all employees should be kept in one file. The self-identification information should be kept in a person’s Confidential/Medical file. Workers Compensation injuries or illnesses should be kept in their own file for each employee. If you have the filing space, it is best if each incident Workers Compensation injury or illness has its own file.

QUESTION: Should all these items identified as "separate file items" be kept in one separate file, or in several separate files? Example, separate file for medical records and OSHA records, or can these all stay in one file?

ANSWER: As answered above, you will have at least two files per employee. A Personnel File and a Confidential/Medical file. Beyond that, you will have one I-9 file that has all completed I-9s in it. Workers Compensation incidents or injuries will have their own files. Also, any OSHA compliance training records should be kept in their own file.

QUESTION: To clarify, should the OSHA file and the worker's comp file be two different files?

ANSWER: OSHA records (like the OSHA 300) can be kept in one file. OSHA guidelines permit that you can archive/destroy OSHA logs five years after each report’s generation. OSHA compliance training records (like forklift training) should be kept in their own file. Any Workers Compensation injury or illness incident should be kept in its own file. Even though record retention of Workers Compensation issues is driven by each State’s law, since OSHA requires retention of injuries/illness records in certain circumstances for 30 years beyond the report’s generation, it is recommended that Workers Compensation records be retained for at least that period of time.

QUESTION: Discrimination or workplace complaints can be kept in personnel file or medical file?

ANSWER: Discrimination or workplace complaints should be kept in their own separate file. It is recommended that once the investigation is completed and discipline is determined, any disciplinary actions or “coaching reports” that result from the investigations should be put in the individual’s Personnel File.

QUESTION: Where should Medical/Dental/life Insurance Enrollment forms be kept?

ANSWER: It is recommended to keep enrollment forms in each employee’s Confidential/Medical File.

QUESTION: Should you also keep your managers interview notes? (Assuming yes) Should they be put in to the confidential file as well?

ANSWER: Yes, you should keep your manager’s interview notes, but make sure that they do not have “double meaning” wording, stray marks, etc. (anything that might be interpreted by another party as a basis of illegal discrimination). It is recommended that the notes be put in the Confidential/Medical File.

QUESTION: what about dr. excuses for missing work. filed separately or with time sheets?

ANSWER: It is permissible to keep the information in a separate Payroll File for each employee, as long as the records are not accessible to a supervisor that would, in some way, provide evidence to infer that the information was used for the purposes of illegal discrimination. In the absence of a separate Payroll File, the information should be placed in the Confidential/Medical File for each employee.

QUESTION: How about unemployment information?

ANSWER: Unless the information could in some way be used by a supervisor for the purposes of illegal discrimination, it is safe to put it in the Personnel File.

QUESTION: When an employee leaves the company, can you merge all their individual files in to one when you send them to storage?

ANSWER: It is not recommended that you “combine” all information into one file. First, the ADA does not permit combination of medical information with the Personnel File. Second, due to the various holding periods, it makes sense to keep the files separate.

As discussed in the webinar, given the Fair Pay Act of 2009, the information in the Personnel File should be kept indefinitely, if possible. It was recommended during the webinar to retain the information in the Confidential/Medical File for a period of 7 years after termination of employment. You should follow the I-9 retention guidelines (destroy the records 1 year after termination or 3 years after date of hire, whichever is later). As answered previously, Workers Compensation information should be kept for 30 years.

While not required by law, it is a good idea to keep documents relating to the I-9 eligibility to work process separate from your general personnel files. If the government conducts an I-9 audit you don’t necessarily want them to have access to the employee’s entire personnel file.

SESSION QUESTIONS AND FOLLOW UP ANSWERS

QUESTION: The I-9 has a section for updating I-9 information. Should we update and how often?

ANSWER: According to the USCIS, “Handbook for Employers Instructions for Completing Form I-9,” http://www.uscis.gov/files/nativedocuments/m-274.pdf

When an employee’s employment authorization expires, you must reverify his or her employment authorization. You may use Section 3 of Form I-9, or, if Section 3 has already been used for a previous reverification or update, use a new Form I-9. If you use a new form, write the employee’s name in Section 1, complete Section 3, and retain the new form with the original. The employee must present a document that shows either an extension of his or her initial employment authorization or new employment authorization. If the employee cannot provide you with proof of current employment authorization (e.g., any document from List A or List C, including an unrestricted Social Security card), you cannot continue to employ that person.

NOTE: Do not reverify List B identity documents, such as a driver’s license.

To maintain continuous employment authorization, an employee with temporary employment authorization should timely file for new employment authorization or an extension of stay prior to the expiration of his or her current document or authorized period of stay. If the employee is authorized to work for a specific employer and has filed an application for an extension of stay, he or she may continue employment with the same employer for up to 240 days from the date the authorized period of stay expires. If an employee has timely filed for new employment authorization and USCIS fails to adjudicate that application within 90 days, the employee will be granted an employment authorization document for a period up to 240 days.

NOTE: You must reverify an employee’s employment authorization on Form I-9 not later than the date the employee’s employment authorization expires.

When you rehire an employee, you must ensure that he or she is still authorized to work. You may do this by completing a new Form I-9 or you may reverify or update the original form by completing Section 3.

If you rehire an employee who has previously completed a Form I-9, you may reverify on the employee’s original Form I-9 (or on a new Form I-9 if Section 3 of the original has already been used) if:

1.       You rehire the employee within 3 years of the initial date of hire; and

2.       The employee’s previous grant of employment authorization has expired, but he or she is now eligible to work under a new grant of employment authorization; or

3.       . The employee is still eligible to work on the same basis as when Form I-9 was completed.

1.       Record the date of rehire;

2.       Record the document title, number and expiration date (if any) of the document(s) the employee presents;

3.       Sign and date Section 3; and

4.       If you are reverifying on a new Form I-9, write the employee’s name in Section 1.

1.       Record the date of rehire and the employee’s new name, if applicable;

2.       Sign and date Section 3; and

3.       If you are updating on a new Form I-9, write the employee’s name in Section 1.

You may complete Sections 1 and 2 on a new Form I-9 instead of completing Section 3 when rehiring employees.

NOTE: You must complete a new Form I-9 if the version of the form you used for the previous verification has since been replaced by a newer version.

QUESTION: On updating, aren't they only talking about if an employee is rehired?

ANSWER: Answered above.

QUESTION: How do you recommend filing I-9s? Alpha vs date of hire vs 

ANSWER: It is recommended to file I-9s alphabetically by employee last name. Once an employee terminates, the form should be dated for termination according to the retention guidelines (1 year after termination or 3 years after hire, whichever is later) and put in a dated tickler order at the back or front of the file. You want to make sure you keep the inactive I-9s together with/in close proximity to the active I-9s in case there is an audit.

QUESTION: Is it really important to destroy I-9 records after three years of hire? What is the down side of keeping these records until an employee leaves?

ANSWER: It is not critical to destroy the records. There are two good reasons in favor of destroying them: (1) excessive records retention/clutter and (2) since they are no longer active, if they are kept in with active records and there is an audit, the audit will take that much longer and may open issues that would not otherwise occur (in this case, it is recommended that if you’re going to separate them out of the active files, you might as well take the extra step to destroy them when you can).

QUESTION: is the personnel file different from the payroll file? Should rate of pay etc. concerning Fair pay act be kept in payroll file?

ANSWER: Some companies have separate Payroll Files that contain pertinent payroll information. If you have a Payroll File and it is kept confidential from supervisors, all payroll related information may be kept there.

If that file does not exist, most of the information that would otherwise be in that file would belong in the Confidential/Medical information and some of the information would otherwise belong in the Personnel File. The rule of thumb to follow, as stated earlier, “in general, anything that could be the basis of discrimination or may be restricted from the employee” should be placed in the Confidential/Medical File. 

QUESTION: The W-4 should be kept in confidential file?

ANSWER: Using the above guideline (and looking at the lists provided earlier in this Q&A), in lieu of a separate and compliant Payroll File, W-4s would belong in the Confidential/Medical File. 

QUESTION: garnishment and child support orders - where should they go?

ANSWER: Using the previous guideline, in lieu of a separate and compliant Payroll File, garnishments and child support orders would belong in the Confidential/Medical File. 

QUESTION: How do all of the retention rules apply to a business that closes?

ANSWER: We are not familiar with the requirements for a business that closes. In doing some research, we could find that from a safety standpoint, the records must live on. An excerpt from “Managing Safety from the HR Desk” states: “"...if the employer goes out of business, the records must live on. If a new company takes over, that company must keep the records. If the employer ceases to exist entirely, its records will probably go to the National Institute for Occupational Safety and Health (NIOSH)." It is believed that the business that is closing will have an obligation to preserve the records in some way. It is recommended that this question be directed to a business attorney.