Virginia law has no specific requirement that private sector employers maintain personnel files nor does it require that private employers grant their employees access to their personnel file. Of course, employees represented by unions may have additional rights to access their personnel files as set forth in any collective bargaining agreement.
At a minimum, the following information should be kept in an employee’s personnel file:
Personnel files may contain the following types of information:
As detailed in the following section, employers should not include medical records and information in personnel files. Likewise, employers should consider maintaining supervisor files separate from personnel files.
The ADA requires medical information to be kept separately from other personnel records.
Medical information of any kind should be kept out of an employee’s personnel file. This includes requests for leaves of absence based on underlying medical conditions and notes from physicians listing work restrictions based on health concerns. If a doctor’s note excusing an employee’s absence contains medical information, it should be kept in a separate file to preserve its confidentiality. A simple notation in the personnel file that a written note was provided to excuse the absence is sufficient. Workers’ compensation claim forms should not be kept in personnel files because of the confidential medical information they often contain. Benefit claim forms for insurance purposes may also inadvertently disclose medical information and should be separated from personnel files in order to maintain confidentiality.
Under the Occupational Safety and Health Act (OSH Act), employers are required to maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents that are required to be monitored or measured under the OSH Act. These regulations provide employees and their representatives with an opportunity to observe the monitoring and measuring of toxic materials and to have access to certain medical records.
The ADA requires that public and private employers maintain strict confidentiality procedures regarding medical information. Even if information does not directly identify an individual, his/her identity may be discernible based on absence records or other information. Once confidential medical information is discernible, it may be subject to broad dissemination. This is especially true with regard to the most sensitive medical information, such as mental health, HIV, or other serious illness. Because the potential for harm to the employee and to the company is so high, employers should carefully monitor access to confidential medical information and should establish procedures to ensure that this type of information is disseminated only as necessary.
Employers can avoid problems and ensure that supervisors and human resources personnel are consistent when it comes to maintaining the files and monitoring employee access to these files by instituting and following a written policy regarding personnel files. The policy should state the circumstances under which employees will be allowed to review their personnel file and should provide for some appropriate form of supervision for these situations. This will ensure that the integrity of the personnel records is maintained.
Personnel files should also be periodically reviewed and updated with new information. As demonstrated previously, every record relating to a particular employee does not belong in that employee’s personnel file. Some records, such as those reflecting confidential medical information, must be kept separately.
Proper documentation is an invaluable tool in defending a company’s decisions relating to a particular employee. Poor documentation, however, can be more detrimental to an employer than none at all. Therefore, employers should ensure that all documentation relating to an employee is accurate, concise, and factual, and employers should keep in mind that any documents created may later be discoverable in future litigation.
Virginia law does not contain a specific requirement governing how long personnel files should be retained, however, employers should retain them for as long as the statute of limitations period for any tort and contract claims that might be brought by the employee following the termination of employment. In Virginia, most tort claims must be brought within two years of the damage. Claims based upon a written contract must be brought within five years of the breach. Thus, at a minimum, Virginia employers should retain personnel records for at least five years from the date of termination. If an employer has an employment practices liability insurer, it is recommended that the employer consult with that insurer to see if it has a recommendation or requirement on how long it wants personnel files retained.
Federal law also imposes various recordkeeping obligations upon employers under Title VII of the Civil Rights Act (Title VII), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Employee Retirement Income Securities Act (ERISA) to name a few. While each statute contains varying retention requirements for different document types (see Appendix A, Recordkeeping requirements), employers are advised to, at a minimum, adhere to the following retention requirements: