Category Archives: Employment Records

Recordkeeping Compliance Tips

Contributed by Noah A. Frank, March 16, 2017

Nondiscrimination and privacy laws make recordkeeping a daunting task. Here are some compliance tips for today’s highly legislated and regulated business world:

KNOW THE FILE TYPES

Not all files are the same.

38340529 - personnel word on folder register of card index. selective focus.A Personnel file contains documents used to determine qualifications for employment (e.g., promotion, transfer, compensation), discharge, and other discipline. Therefore, do not include records indicating protected characteristics – race, religion, marital/dependent status, date of birth (age) and the like – because this information should not determine an employee’s qualifications. In some states, like Illinois, employees have the right to inspect personnel files, and even submit rebuttals! Typically, there are limits to frequency of reviews and the types of records which may be reviewed.

Secure Payroll/Confidential files maintain sensitive personal and financial information, such as date of birth, Social Security Number, financial account information, marital/familial status, wage garnishments/assignments, and self-identifying of race, disability or veteran status records. While subject to discovery in litigation, these files are typically not subject to personnel records review.

Medical files house FMLA and other medical absence records, requests for disability accommodation, and other personal health information. Safeguard these files on a strict need-to-know basis; direct supervisors should almost never have access to a subordinate’s medical file.

Use separate files for each investigation (sexual harassment, theft, or other) and Workers’ Compensation accident.  All Forms I-9 should be stored in one file.

PERFORM A FILE AUDIT

Given the increase in employment litigation, good file hygiene is a must:

  • Ensure forms are compliant. Update applications and other personnel forms to make recordkeeping easier.
  • Develop a record-retention policy – Ensure you keep records for the required period of time. Even employment applications for non-hires must be retained for at least one year from the decision date. In Illinois, employment records should be kept for the length of employment plus 3 years; payroll records and individual employment contracts should be kept for 10 years post-employment. Hazardous exposure/monitoring reports (MSDS) must be kept for 30 years! Other records fall in between, varying by applicable law.
  • Destroy old records! The inclination to cheaply archive old data can significantly increase litigation costs. Before you just purge though, make sure you understand legal obligations in keeping records (see record retention above). When purging make sure to follow your schedule and the law, including any preservation obligations because of actual or pending litigation.
  • Execute an audit plan. Prepare proper files for all new employees. Divide current employees by months, and review a few each week, separating old employment files into the correct categories. While it was once common for job applications to ask date of birth, marital status, gender, and similar questions, this is a ripe source for a discrimination claim. Consider strategies to re-categorize or separate out such information. Consider an overall HR audit to make sure all of your policies, procedures and forms are in line with current laws.
  • Protect your data from breach. Encrypt and password-protect electronically stored files.

Seek the advice of experienced employment counsel when faced with a records request or to help with the audit. They know the law, and can quickly ensure that the proper records are produced (or not) and avoid a Department of Labor records review compliance investigation

How Can Employers Reconcile the Federal Motor Carrier Safety Regulations with Growing “Ban the Box” Laws?

Contributed by Jeffrey Risch and Sara Zorich

The Federal Motor Carrier Safety Administration Regulations (FMCSR) set forth rules and regulations for employment applications involving applicants applying to drive commercial motor vehicles. (See 49 C.F.R. § 391.21).  Section 391.21 has been adopted in most states (for example, Illinois law recognizes Section 391.21 pursuant to Title 92 of the Illinois Administrative Code).

FMCSR specifically requires applicants completing a commercial driver application to (1) list all violations of motor vehicle laws or ordinances (other than parking) of which the applicant was convicted for in the prior 3 years and (2) provide a statement setting forth the details and facts of any denial, revocation or suspension of their driver’s license.

In recent years, a growing number of states, in addition to local municipalities, are passing “Ban the Box” laws that prohibit employers from inquiring into criminal convictions on their written applications for employment or at any time prior to a conditional job offer.  In fact, as of January 1, 2015, the Illinois Job Opportunities for Qualified Applicants Act (a.k.a. “Ban the Box”) bars private employers with 15 or more employees from asking about, requiring disclosure of, or considering an applicant’s criminal history, until the employer has notified the applicant of his or her selection for an interview or until a conditional job offer has been made.

So how are employers supposed to reconcile Section 391.21 requirements with the limitations of inquiry into criminal conduct under local or state “Ban the Box” laws?  Employers who have job positions governed by Section 391.21 should recognize and rely on any expressed exceptions under such local or state laws.  For instance, Illinois’ “Ban the Box” law permits employers to ask about convictions on an application if “employers are required to exclude applicants with certain criminal convictions from employment due to federal or State law.” (820 ILCS 75/15(b)(1)).  However, employers must be very careful to only request information on the initial application that is specifically required under Section 391.21.

An additional hurdle for employers is that some states have anti-discrimination laws that limit otherwise permissible inquiries.  As an example, the Illinois Human Rights Act (IHRA) prohibits private employers with 15 or more employees from asking applicants about any sealed or expunged criminal record of conviction.  However, once again there is an exception to the IHRA when the request is “otherwise authorized by law.”  Since 49 C.F.R. 391.21 requires an employer to inquire about ALL violations of motor vehicle laws of which the employee was convicted in the past three years on an application, this is an exception to the IHRA and no qualifying language regarding sealed or expunged records is required.  But again, any inquiry into other types of convictions not covered by FMCSR (after selection for interview or conditional offer is made) must have the qualifying language required under the IHRA.

Bottom Line: Employers cannot follow a one size fits all approach with employment applications.  Trucking companies throughout the United States, and particularly in the Midwest, must review their applications for drivers of commercial vehicles to ensure they are complying with the requirements under federal, state and local laws.

The Times, They Are A-Changing…Flexible Work Required?

Contributed by Julie Proscia

Flexible work weeks have traditionally been viewed as a perk that large employers were able to give their employees because of their size and depth. This was a privilege that was generally earned on a case by case basis after an examination of the position and the employee. This is not necessarily the case anymore in San Francisco.

The San Francisco Board of Supervisors amended its city’s Family Friendly Workplace Ordinance (FFWO) on January 7, 2014 to clarify that the ordinance applies to all employers with at least 20 employees, regardless of the employees’ location. The amendment became effective on February 14, 2014. This means that if you have 15 employees in San Diego, 4 employees in San Jose and only 1 employee in San Francisco, the lone San Francisco employee is covered by the ordinance.

The FFWO requires that employers with 20 or more employees allow employees who are employed in San Francisco and who have been employed for six or more months (by their current employer) and work at least eight hours per week on a regular basis to request a flexible or predictable working arrangement to assist with caregiving responsibilities. Employees may request this change twice per every 12 month period.  The employee may request the flexible or predictable working arrangement to assist with care for:

  1. A child or children under the age of eighteen;
  2. A person or persons with a serious health condition in a family relationship with the employee; or
  3. A parent (age 65 or older) of the employee.

Employers have several obligations under the new law. First, employers are required to post a notice informing employees of their rights under the law. The notice must be posted in English and any language spoken by at least 5% of the employees in that workplace. A link to the notice follows: http://sfgsa.org/modules/showdocument.aspx?documentid=11256

Second, businesses must implement request forms and within 21 days of an employee’s request for a flexible or predictable working arrangement, an employer must meet with the employee regarding the request.  Just because you meet with the employee within 21 days does not mean that the request can automatically be denied. Rather, an employer who denies a request must explain the denial in a written response that sets out a bona fide business reason for the denial and provides the employee with notice of the right to request reconsideration.

This law and the request and response process are akin to the interactive process required by the ADA and should be viewed similarly. When employers are determining whether or not a request should be granted, they should evaluate if the request would pose an undue burden and the impact on hiring and retraining another individual.  Moreover, documentation pertaining to the request is required to be kept for a period of three years from the date of the request.  One thing that we can say about the state of California, green does not mean reduced recordkeeping.

Time To Review How Secure Your Company’s Confidential Information Is

Contributed by Steve Jados

A recent online Wall Street Journal article on employee theft of company information included the statistic that 50 percent of the people surveyed admitted taking confidential information when they left a former employer.  Other statistics in the article made clear that most employers do not take adequate steps to guard against such theft.

Employers face a constant risk that departing employees may inflict substantial economic damage by taking trade secrets and other proprietary, sensitive, or otherwise confidential information and using it against the former employer.  In light of that risk, it is imperative that employers promptly review and strengthen their efforts to protect the information most critical to their continued success.     

Companies that use confidentiality agreements (or other more restrictive employment contracts) in an effort to safeguard confidential information must recognize that those agreements cannot, by themselves, adequately protect a company’s confidential information.  Those agreements are just the beginning of the process of securing confidential information.

The reality is that confidentiality agreements must be backed up by strong, strictly-enforced policies that restrict employee access to and use of confidential information.  The most basic of these policies require unique passwords to access company computers, networks, and electronic files.  Those passwords should be more complicated than “password,” and should be given only to those employees who must have access to the confidential information.  Companies should also consider policies that bar the copying or transferring of computer files to any computer, storage device, or e-mail account not owned by the company.

Other basic policies require that paper copies of client lists, marketing research, formulas, or anything else considered non-public and valuable to the business be kept (literally) under lock and key in locked drawers or file cabinets.  Again, only employees who need the confidential information should have copies of the keys.

Companies should also disseminate written policies that define, in detail, the steps employees are expected to take to keep confidential information secure.  Such policies should also require the prompt return of all company property, including confidential information, upon resignation or termination. 

The critical component with respect to confidential information is the enforcement of company policies.  When considering whether to enforce confidentiality agreements, courts typically evaluate the steps the employer took to protect its confidential information.  Courts generally will not extend their protection where the company has not made its own significant efforts to protect itself.  As such, businesses must undertake a critical review of their confidentiality practices to ensure that all security gaps are closed, and that there are no lapses in the enforcement of security policies.

Seventh Circuit Finds that Employer’s Shifting Reasons for Termination Defeat Summary Judgment

Contributed by Sara Zorich

On June 11, 2013, in Hitchcock v. Angel Corps, Inc., 12-3515, 2013 WL 2507243 (7th Cir. June 11, 2013), the Seventh Circuit overturned Defendant’s motion for summary judgment granted by the Northern District of Indiana in Plaintiff’s pregnancy discrimination case.  The Court held that the multiple and shifting reasons proffered by the Defendant for its termination of Hitchcock precluded the granting of Defendant’s motion for summary judgment.

Hitchcock alleged that the Defendant terminated her because she was pregnant.  Shortly after discovering she was pregnant, Hitchcock’s supervisor allegedly asked her if she was quitting after giving birth and that he needed a decision as soon as possible if she was returning after the birth.  An affidavit of Hitchcock’s co-worker also claimed that the supervisor asked her to rethink having a third child because she seemed to already have issues with her attendance.  Hitchcock also alleged that her workload significantly increased and she encountered increased supervision after she and her supervisor discussed her pregnancy. 

Defendant is a non-medical home care agency that performs personal care services for its clients.  The Seventh Circuit took issue with what it perceived as Defendant’s evolving and inconsistent explanation regarding Hitchcock’s termination.  First, on May 3, 2010, Defendant stated that Hitchcock’s termination was for completing an admission on an expired client and that her actions compromised the health and safety of the client.  Then later in support of the motion for summary judgment the following reasons were offered for the termination: (1) Defendant’s supervisor indicated that Hitchcock would have compromised the health and safety of the client by failing to deal with dried blood on the patient’s mouth and failing to take other steps; (2) one of the owners of the Defendant Corporation stated that Hitchcock was terminated because she performed a deficient assessment of a potential client who already passed away; and (3) Defendant’s brief claimed that the firing was for Hitchcock’s failure to call 911 after leaving the client’s home.

Defendant’s motion for summary judgment was granted by the Northern District of Indiana, however, the Seventh Circuit reversed and remanded the case holding that Hitchcock submitted evidence that the supervisor who fired her had an animus toward pregnant women, treated Hitchcock differently after learning she was pregnant and Hitchcock was fired only weeks later.  Further, the Court held that the reasons Defendant proffered for Hitchcock’s termination shifted and were inconsistent, which could lead a reasonable jury to conclude that Hitchcock was fired because she was pregnant.

Take Away for Employers: Employers are reminded to carefully document the reasons for an employee’s termination.  If the reason for the termination is not clearly documented and employees recall different or varying reasons or bases for the termination during a later proceeding, this could lead a court to conclude that the reason proffered at the time of termination was not the truth and can be interpreted as evidence of pretext defeating a motion for summary judgment.

California Expands Employees’ Access to Personnel Files

Contributed by Paul Jaquez

On September 30, 2012, Governor Jerry Brown signed Assembly Bill (A.B.) 2674, which amplifies the rights of employees vis-à-vis their personnel files.  Beginning on January 1, 2013, employers in California will be required to permit employees – both current and former – the right to inspect and copy personnel files and records.  The law has two important modifications.  First, the law now imparts the same rights to former employees to access their personnel files as that currently maintained by current employees.  Second, while employees had previously been permitted to inspect their personnel files, employees had not been entitled to receive an actual copy of the file, but rather, only receive copies of the actual documents that the employee had signed.  Now, however, current and former employees, or their designated representatives, can receive a copy of the contents of their entire personnel file, provided they pay the cost of copying.

Employer Compliance

  • Employers must develop, and provide upon request, a written form which permits an employee to request access and/or copy their personnel file.
  • Employers must produce such a copy within 30 calendar days of the written request.
  • Failure to comply can result in the employers being fined $750 (plus attorneys’ fees if necessary, which is awarded to the employee.

Best Practices Going-Forward

  • Develop a form that complies with the written request for inspection and copying the personnel file.
  • Review that only the required documents are properly kept in personnel files.

  • Documents employees are entitled to include the following:
    • Application for employment;
    • Payroll authorization form;
    • Notices of commendation, warning, discipline, and/or termination;
    • Notices of layoff, leave of absence, and vacation;
    • Notices of wage attachment or garnishment;
    • Education and training notices and records;
    • Performance appraisals/reviews; and
    • Attendance records.
  • Documents employees are NOT entitled to include the following:
    • Records relating to the investigation of a possible criminal offense;
    • Letters of reference;
    • Ratings, reports, or records that were obtained prior to employment, prepared by identifiable examination committee members, or obtained in connection with a promotional examination.

USCIS Extends Expiration Date of Current I-9 Form

Contributed by Sara Zorich

On August 13, 2012, U.S. Citizenship and Immigration Services (USCIS) announced that employers should continue to use the current Form I-9 available until further notice.  Employers can find the current I-9 Form at http://www.uscis.gov/files/form/i-9.pdf.  USCIS has indicated that this current form should continue to be used even though there is an expiration date of August 31, 2012 on the form.

In March 2012, USCIS published a proposed revision to the Form I-9 and accepted comments from the public on the proposed revisions through May 2012.  However, USCIS has not accepted the new form and is instructing all employers to continue using the current I-9 form until further notice.