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Personnel Files Compliance

Does the confidential folder have to be maintained in a separate cabinet or just a separate folder?

Both the Americans with Disabilities Act (ADA) and HIPAA, the Health Insurance Portability and Accountability Act require that medical records be kept in a separate file from other personnel or payroll information.

An employee’s confidential file should be completely separate from their personnel file. Ideally, it should be in a separate file cabinet that is kept under lock and key at all times. Only someone with a genuine need to know the confidential information should have access to the file.

This is to ensure that supervisors making decisions about promotions, raises, job assignments, etc. are not basing those decisions on the employee’s private medical information. Doing so would be illegal discrimination under ADA.

Putting confidential information in a separate folder within the personnel files, or keeping them side-by-side in the same file cabinet, or even in a separate drawer of the same file cabinet, would defeat the purpose of having a confidential file, because anyone who had access to the personnel file would have access to the confidential file.

Most companies choose to keep any information that could be the basis for illegal discrimination in the confidential files. This includes info about the employee’s race, religion, color, sex, and national ancestry as well as info on the employee’s age (if over 40), and medical information including pregnancy or disability status. The reasoning is simple…a supervisor who doesn’t have access to such information, can’t use it to illegally discriminate against the employee.

Some companies have successfully defended against charges of discrimination by showing that managers making decisions on hiring, promotions, etc. did not have access to information on race, color, religion, disability or other aspects of an employee’s protected status.

Many employers prefer to keep information such as the employee’s test scores, credit reports and reference checks in the confidential file, as well.

So, ideally, there should be three separate sets of employee files:

– Personnel files

– Confidential files

– I-9 files

The I-9 files by definition include information on citizenship status and country of origin, which could be used for illegal discrimination. For that reason, all the I-9 forms, and any copies of the supporting documents, should be kept in a separate file or notebook. Again, this item should be under lock and key. Normally the records are organized by hire date, or by expiration date of the documentation.

Some companies prefer to keep payroll records separate in yet a different file, but that is strictly  a matter of company policy. 

This entry was posted on Thursday, November 1st, 2007 at 11:27 am and is filed under
Human Resources Management.
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