Human Resource Blog

Many employers are surprised to learn that there are no personnel files that are specifically limited to C-level employees such as CEO, CFO, etc.

Under the law, you need 3 sets of employee files. If you keep copies of I-9 documents, the I-9s need to be kept with the supporting documents, in a file separate from other employment records. This is to prevent illegal discrimination based on citizenship or national origin.

The second set of files are the confidential files, which contain medical information including doctors notes about absences, FMLA, disability accommodations, etc. The ADA or Americans with Disabilities Act requires that the employer not consider any medical information when making employment decisions such as hiring, firing, promotions, training, etc. Therefore, no one who will be involved in personnel decisions should have access to these files, and that includes the employees supervisor as well as the CEO, COO or CFO.

Remaining information including disciplinary notices and performance evaluations goes into a personnel file. Thsi is the file that the employees supervisor, CEO, etc. would have access to.

The best practice is probably to keep credit reports and background checks in the confidential file with medical information, however, in many cases this information could be given to a supervisor or CEO in making a decision on promotion, etc. The medical information should never be given to anyone in a position to make employment decisions.

Some HR pros refer to the confidential files as C-files. We wonder if you have become confused and assumed that the C stood for C-level, as in CEO, COO, etc.

There is no law that specifically requires the HR person to have a private office, although that is a best practice in the industry. Many HR conversations involve interviews, disciplinary actions, discussions of performance and salary, etc. It is a very poor practice for the entire office to be aware of the details of these discussions. But it does not violate any law.

HIPAA and ADA violations are a particular concern. When an employee discloses private medical information during a discussion of benefits, reasonable accommodations for a disability, FMLA, etc., by law that information must remain confidential — meaning no one except the HR person should be able to overhear it, not even the employees supervisor.

Such a seating arrangement might be acceptable if space were limited and the HR person had a private office available to use when necessary.

However, the HR person must have a secure place to store files, including employee confidential files. These files are separate from personnel files, and by law must be kept securely locked away. Most companies interpret this to mean that the confidential files are kept in a locked file cabinet, in a private office that is locked when unoccupied. It would be acceptable to keep the files in a locked file cabinet in a common area, as long as their security could be insured.  

There are two ways to address this issue: you can prohibit the selling outright, or you can address it as a performance issue.

Most companies have a policy that would prevent an employee from conducting another business on company time or property. Selling Avon (or Tupperware, or vitamins, or anything else) on your premises would violate this policy. If you do not have such a rule, you may want to introduce one. You should then inform the employee that what she is doing violates company policy. If she continues, you can issue written reprimands and eventually fire her.

Be aware, however, that a policy against selling items at work would also prohibit parents from bringing items form their childrens school to sell, such as Girl Scout cookies, candy, wrapping paper, magazines, etc. Such fundraisers are very popular. If you wish to allow them, you can ban for-profit selling but permit sales that benefit a charity. (You may want to ban all sales. Coworkers can feel pressured to buy unwanted items, especially when it is the boss who sells them.  Just be aware that if you implement this policy, you will be viewed as a Grinch.)

You could also ignore the selling, and simply focus on the performance issue. If you choose this route, the Avon lady could leave the booklet in the break room, for coworkers to look through when they are off the clock. However, any employee (vendor or customer) who engaged in this activity while on the clock would be disciplined. This tactic seems more fair to many employees, but requires constant vigilance by the employer.

No. The Americans with Disabilities Act or ADA does not contain any provision for time off to care for a family member who is disabled. The ADA has a number of provisions, including requiring that public buildings be handicapped accessible.

The portions of the ADA that apply to employment require that an employer make reasonable accommodations for a worker with a disability. There is no requirement that the employer make accommodations for an employee who has a family member with a disability. Suppose employee Marsha is sight impaired. Under ADA, the employer may be responsible for providing special computer software to help Marsha do her job. The employer might also be required to give Marsha time off to go to medical appointments for her eyesight. Now suppose that employee Ted has a disabled son who uses a wheelchair. The employer is not required to give Ted time off under ADA to care for his handicapped son, or to take the son to doctors appointments. Ted is not disabled, so the ADA does not apply to him.

In some cases, an employee may be entitled to up to 12 weeks of unpaid leave under FMLA, the Family and Medical Leave Act, to care for a family member with a serious health condition. Several states also have family leave laws that would permit an employee to take time off.

This is a business decision rather than a matter of employment law. There is no federal or state requirement that an employer have all the personnel files consolidated in one location. However, as a company you are still liable for any violations of state or federal law, even if you are not privy to the files at a certain location.

For example, if one branch manager files a doctors note or other medical information in an employees personnel file, the entire company is in violation of ADA. You cannot plead ignorance on this issue — you are responsible for this, even if you were unaware of it. 

Some companies would keep all personnel files and HR functions at the corporate office, and expand the HR department there. Others would permit at least some autonomy at each branch regarding HR matters, and allow those branches to keep their own personnel files. In that case, you may need to train branch managers or have at least one HR person at each location.  

Most companies follow a middle-of-the-road procedure. They allow managers at branches to handle many HR issues, and to maintain personnel files. However, copies of critical documents such as I-9 forms and supporting documents, written reprimands, salary information, and performance evaluations are faxed or sent to the home office, to be kept in a set of personnel files there. This creates a series of checks and balances where, for example, a branch manager cannot create liability for the employer by knowingly hiring undocumented workers. 

Also be aware that Texas, Georgia, Florida, Oklahoma and Kentucky each have employment laws that are different from the Ohio employment laws. Someone within your organization needs to be familiar with the HR laws in each of those states.