Personnel Files: Organized and updated information is critical
(from Maine Townsman, April 2001)
by Antoinette Mancusi, Technical Advisor, Legal Services, MMA

The importance of keeping updated and organized personnel records cannot be overstated. There are several reasons why municipal employers should take the time to organize their personnel records. First, there are a host of federal and state laws including "record retention rules" promulgated by the Maine State Archives, which establish minimum "retention periods" for municipal records which include personnel records. Therefore the first reason personnel records should be properly maintained is a legal one—many records are subject to mandated retention periods. (Please refer to the chart at the end of this article for a summary of municipal personnel record retention requirements. Municipalities can access the entire set of Municipal Record Retention Rules on line at their website: http://www.state.me.us/sos/arc/recmgmt/localgov/localhom.htm.)

Second, accurate and updated personnel "documentation" is imperative in a business environment, which grows more litigious every year. Employers are being sued at ever increasing rates and as a result they require "documentation" (a.k.a. evidence) of the appropriateness of their personnel actions in order to fend off allegations of improper employment practices including bogus claims of discrimination. As a result, having accurate, updated and organized employee records makes good business sense. 

Third, state law (26 M.R.S.A. § 631) provides employees with access to their personnel records (including former employees and duly authorized representatives). However, a written request for such information must be submitted to the employer. File review and copying must take place at the location where the personnel files are maintained, during normal office hours unless, at the employer's discretion, a more convenient time and location for the employee are arranged. If there is a cost for copying the material the employer can charge the person requesting the copy. 

State law (26 M.R.S.A. § 630) also provides that an employer, upon written request of a terminated employee, must provide that employee the written reasons for the termination of that person's employment within 15 days of receiving such a request. As a result, municipal employers should have updated files, planning on the eventuality that an employee will someday request to see his or her personnel file or request other information from their file, such as reasons for termination.

Lastly, under Maine's "Right to Know" Law, officially the "Freedom of Access Act" (1 M.R.S.A. §§ 401-410), many items contained in municipal personnel records are open to the public unless confidentiality provisions of 30-A M.R.S.A. § 2702 protect them. (See section on "Confidentiality" below). For example, records of every decision involving the dismissal or refusal to renew the contract of any public official, employee or appointee is an open document (1 M.R.S.A. § 407). Again, because of the public's access, municipalities should plan for such requests for information by having updated and organized files. 

The contents of personnel files. Municipal personnel files and their components will necessarily differ from municipality to municipality depending on the size of the work force and inherent differences in administration styles. Somewhere between bare bones and overly inclusive approaches exists a happy medium to personnel file creation that municipalities should individually explore. 

Regardless of the municipality's approach to file creation, it is important to make certain that any personnel document, which will necessarily be placed in the file, is worthy of creation. Because any municipal document created cannot be destroyed (or at least must be retained/destroyed according to record retention rules), municipal officials, personnel directors, etc. creating documents must do so with the awareness that any such document will necessarily be "housed" in the employee's file for years to come. 

Make sure you really want the document and that it is drafted in a manner that will not embarrass the municipality down the road or provide evidence of inappropriate employer conduct. If for example you are going to document a disciplinary issue, be certain to keep the documentation succinct and drafted in an objective tone, using appropriate language. Remember, any document you create and file in a personnel file may very well be discoverable during the course of litigation. As a result, for employee actions leading to discipline or especially termination, it is a very good idea to have private counsel review the language used in such documents prior to having the documents placed in an employee's file. 

Beyond disciplinary records, there are obviously many other records in a typical personnel file. The following is a chart (a relatively extensive one—although by no means complete) developed for municipalities using information contained in "What's In A Personnel File? (And What Should Not Be)" by William H. Truesdell, of The Management Advantage, Inc. The documents have been categorized into 6 general subject areas. These are "suggested" categories and municipalities should select categories that work for them. 

Professional municipal personnel directors have recommended using "six-section" folders with top clasps that can be purchased at most office supply stores in order to store documents in an organized fashion. For those of you alarmed by the extensive nature of the following list—remember, this is intentionally extensive and it is anticipated that most municipalities' files will probably not contain all the listed items:

Beyond the host of items that may be included in an employee personnel file there also exist many items that should not be placed in such files. The following categories of documents should be placed in their own separate files due to the sensitive nature of the information (which is not to say that all documents contained in the "primary" file are public). Again, in hopes of presenting the material in an easier format, the following is a chart summarizing personnel documents which should not be stored in an employee's primary personnel file. 

It has also been recommended by human resources professionals that employee I-9 forms used to document numbers, which prove the employee's identity, and right to work in this country also be kept together in a separate file. All employees hired after November 6, 1986 must fill out this form by virtue of the Immigration Reform and Control Act of 1986. Because government agencies are authorized to visit work places and review an employer's I-9 forms, it is a good idea to have all I-9 forms stored in one file, apart from individual employee files. If these forms are not stored in a separate file, government representatives might find themselves rummaging through more information than they need--which may or may not be "a good thing."

What form must personnel files be maintained in? According to 26 M.R.S.A. § 631, records in a personnel file may be maintained in any form including paper, microfiche or electronic form. Regardless of the form, the employer must take "adequate steps to ensure the integrity and confidentiality" of records. An employer maintaining records in a form other than paper must have available to the employee, former employee or duly authorized representative the equipment necessary to review and copy the personnel file. Municipal employers must also keep in mind that if a member of the public submits a request for non-confidential employee information, and records are maintained in forms other than in paper, the municipality would also somehow have to make available the information requested. Employers failing to comply with information requests under § 631, without good cause, are subject to fines. 

Confidentiality. The safest rule of thumb is to treat all information contained in a municipal employee's personnel file as confidential unless an exception exists. Limiting access to employee information on a "need to know" basis internally within the workplace is the best approach. Unless an employee is requesting non-confidential employee information in their capacity as "citizen" based on the "Right to Know Law," following the "need to know" approach is the correct practice.

With regards to the general public, because of the "Right to Know Law, " municipal records (including personnel records) that are not specifically deemed confidential by law are accessible to the public. This is where certain exceptions to the general rule of confidentiality exist. Title 30-A, § 2702 establishes the confidentiality of only certain municipal personnel records i.e., removes them from the gamut of documents open to public inspection.

According to § 2702, personnel records specifically exempt from the definition of "public records" include:

• Applications, resumes, letters and notes of reference, working papers, research materials, records, examinations and any other documents or records and the information they contain, solicited or prepared either by the applicant or the municipality for use in the examination or evaluation of applicants for positions as municipal employees. Note however, that once the applicant is hired, applications, resumes and letters and notes of reference, other than those letters and notes of reference expressly submitted in confidence, pertaining to the applicant hired, become public records.
• Telephone numbers are not public records if they are designated as "unlisted" or "unpublished" in an application, resume or letter or note of reference.
• Medical information of any kind, including information pertaining to diagnosis or treatment of mental or emotional disorders. Note that other laws also control the confidentiality of medical information found in personnel records and require that such medical information be kept separate from the personnel file e.g., ADA (29 C.F.R. § 1630.14(d)(1); Maine Human Rights Act (94-348, Chapter 3, Section 3.08.)
• Performance evaluations and personal references submitted in confidence.
• Information pertaining to the creditworthiness of a named employee.
• Information pertaining to the personal history, general character or conduct of members of an employee's immediate family; and
• Complaints, charges or accusations of misconduct, replies to those complaints, charges or accusations and any other information or materials that may result in disciplinary action. Note however, if disciplinary action is taken, the final written decision relating to that action is no longer confidential after the decision is completed if it imposes or upholds discipline. The decision must state the conduct or other facts on the basis of which disciplinary action is being imposed and the conclusions of the acting authority as to the reasons for that action. Note: There are additional rules for arbitrators overturning disciplinary action. Please refer to § 2702 for further information. 
• Investigations of deadly force or physical force by law enforcement officer, except that the name of the law enforcement officer is not confidential in certain instances.

Municipalities must organize and create documents in a manner that maintains the integrity of confidential documents yet provides the public access to non-confidential information contained in personnel files (e.g., wages, job descriptions). Because municipalities in this state work under broadly written "public records" laws, allowing the general public much access to information, the probability that a resident will someday request information from an employee personnel file is good. If the municipality has properly organized its personnel files, the task will be much easier and safer i.e., there will be less likelihood of releasing confidential information.

Storing personnel records. Personnel files should be stored in a secure location, preferably under lock and key, and if possible should not be left unattended. Of course, if the files are archival records i.e., old records of past employees, chances are they will be placed in storage facilities or file cabinets away from the central office. But again, even old personnel files should be kept locked. 

Releasing personnel information. There are a few scenarios, which municipal employers should plan for regarding the release of employee information. First, municipalities must decide what records or information to release in the event a prospective employer calls regarding an employee. The common practice (due to liability for defamation) is to confirm only the most generic employment information such as employee title, dates of employment and salary. Although it is not uncommon for employers to deviate from this practice when dealing with "stellar" employees, municipalities must be careful whenever straying from established practices. The general rule is to apply policies and practices consistently—exceptions to policies, or inconsistent application of policies is often breeding ground for lawsuits based on discrimination—so tread carefully on this one. 

It is also not uncommon for employees to request that personnel (or personal) information be released for financial reasons. For example, an employee may want the employer to verify information that may be required to support such things as mortgage and credit card applications. Despite the fact that some of the information necessary to confirm such employment information is a matter of public record i.e., wages, it is still a very good idea to get into the habit of requiring employee-written authorization, specifying the precise nature of the information to be released to prospective creditors, etc. Such policies protect the employer as much as the employee and employees should be told that such a policy is designed for their protection.