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Texas Requirements for Confidential Employee Files

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My company recently starting working with an architect on plans for a new building. The architecture planner informed HR that Texas law requires that confidential employee files be locked “two locks” away from the public. In other words, employee files must be kept in a locked filing cabinet, which is then in turn locked in an office. Is this correct?

Tell the architect to stick to designing buildings, and leave the HR law to the experts! Tommy Simmons, an attorney with the  Texas Workforce Commission and author of Especially for Texas Employers confirms that there is no law in Texas that specifically addresses the lock system used to store confidential files.

 

According to Mr. Simmons, employers need to do “whatever it takes to make sure that medical information is not relased to anyone who has no legal right to see it.” He notes that in some cases one lock may be sufficient for this purpose, while in others, it may require four or five locks. The relevant law here is the Texas version of the ADA law. Both the state and federal laws apply to businesses with 15 or more employees.

 

Several federal laws and court decisions mandate that certain types of information including data on an employee’s medical condition, disability status, background, credit, race, age and religion be kept in confidential files. The files should be under lock and key, and the public should not have access to them at any point. In fact, even managers and supervisors should only have access to such files on a “need to know” basis.

In particular, the Americans with Disabilities Act of 1990 requires that a worker’s disability status not be a factor in any personnel decision. If a supervisor doesn’t have access to that information, it’s easy to comply. In addition, HIPAA requires that employers keep all medical information on an employee in the strictest secrecy.The idea is to restrict access to these files so that they are viewed as seldom as possible, even by people with a genuine need for the information. And, of course, they should never be viewed by anyone without a genuine need for the information, regardless of whether that person is within the company or a visitor. Without knowing the proposed layout of the new building, it’s impossible to comment specifically on this situation. But, here are some general guidelines.

The arrangement that the architect suggests – having confidential files in a locked file cabinet in a locked office is certainly the most common, and possibly the safest. But it’s not necessarily the only option.

It’s not enough to have confidential files in an unlocked file in an office with a lock on the door. This is because anyone in the office automatically has access to the files 24/7. And, any visitor to the office also has access.

Having regular access to an employee’s information on race, color, religion, disability status, medical condition, age, and other privileged information makes it more likely that this data will inadvertently be used to illegally discriminate against the employee.  That would be a violation of Title VII of the Civil Rights Act of 1964.

Many companies have the policy that confidential files are not to be left on a desk, even in a locked office. This is true even if it’s only for a short period of time. The files should be stored in a file cabinet unless they are actively in use.

However, in many cases files are kept in a locked cabinet in a closet or file room that does not lock. This probably would not violate the law, as long as access to that information was genuinely restricted. Many employers will err on the side of caution, however, and get a lock for the file room as well.