Personal Record Retention Should Also Respect Confidentiality

by on July 6, 2009 · 0 Comment POSTED IN: HR Info Center

Keep Medical and Immigration Forms Separate from Other Personal Record Retention Documents

The next category of documents to include in personal record retention is medical history and other documents unrelated to the job. These are items that are unrelated to the job and they’re inappropriate to use in making employment decisions. These include things like pre-employment reference checks, candidate interview evaluations, credit reports.

You don’t want your supervisor reviewing things in the personal record retention files that might get you into trouble under the Fair Credit Reporting Act where – that may cause them to consider inappropriate data. Things like employee photos are probably not related to the job. That’s a particular concern from a race or national origin, discrimination perspective. And EEO data as well should also be kept from supervisors as well.

These medical history and other documents unrelated to the job should always be maintained in separate files. For example, the Americans with Disabilities Act and the Family and Medical Leave Act actually require medical records to be treated confidentially. So, these things should not be finding their way into the personal record retention or the employee history file. They should be kept absolutely separate. And never the twain shall meet.

Any medical information – these include benefits claims forms, reimbursement requests, worker’s comp claims, drug test results, post op or physical exams, voluntary disclosure information — anything having to do with an employee’s medical condition, they need to be kept absolutely separate from all other personal record retention data. And they should be only accessed by people with an absolute need to know.

These should not be finding their way to the supervisors. They should not be accessed unless someone has a very good and very legitimate reason to be taking a look at these documents.

The third category here is Immigration Act Form. As you are all aware, an employer satisfies its verification requirements under the Immigration Reform and Control Act by completing an I-9 Form for each employee.

Just as a practical matter, if you are ever investigated for – by Immigration authorities, it’s just a good idea to maintain these forms also in a separate file, apart from the personnel files so that – just basically, so that it’s easy to access. You’ve got them all waiting at a file.

If the Immigration authorities want to see these forms, it’s easy just to pull that file out and hand it over to them. That way, they don’t have to go leafing through various personnel files.

On another note, it’s also a good idea not to have Immigration Act forms included in your personal record retention files because – let’s imagine that a supervisor is deciding to make a promotion decision and they flipped through the personnel files and then they see employee A is – has a national origin other than the US and employee B has a national origin from within the US. They are an American citizen in other words. And they choose employee B.

It’s not a good piece of evidence for you if employee A decides to sue under a national origin discrimination theory. And all of a sudden we have evidence that the supervisor did review the immigration forms that were in the personal record retention files. So the safest course of action here is to keep the immigration form separate from the other personnel data.

Edited Remarks From “Personnel Document Retention: What to Keep, How to Keep It & Why It Matters” by Matt Gilley

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