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AttorneyConnect - Frequently Asked Questions About Handling of Personnel and Other Employee Files

Posted By IAMU, Wednesday, September 14, 2016
Updated: Wednesday, September 14, 2016

 

by Patrick D. Smith, Attorney with the law firm of Bradshaw, Fowler, Proctor & Fairgrave, P.C.

Frequently Asked Questions About Handling of Personnel and Other Employee Files

  1. What should be in a personnel file?
    Iowa law has very few requirements governing personnel files. It requires only that an employee have access to such a file, and that the right of access includes, but is not limited to, “performance evaluations, disciplinary records, and other information concerning employer-employee relations.”

  2. Are there any limitations on an employee’s access to his or her personnel file?
    Yes. The employer and employee are supposed to agree on the time the employee may have access, and a representative of the employer may be present. If the employee wants copies, the employer may charge a reasonable fee (which means an amount a commercial copying business would charge). The employee shall not have access to employment references written for the employee.

  3. What about former employees?
    The law is not clear whether former employees are also allowed access. We typically recommend allowing access under the same conditions as is permitted for existing employees (i.e. reasonable copy fees may be charged; employer representative can be present during review).

  4. Should a supervisor’s personal notes relating to employee discipline or performance be put in the personnel file?
    Although the disciplinary records and performance evaluations should be kept in the employee’s personnel file, it is not necessary that a supervisor’s own notes be kept there. Nor do e‐mail communications concerning discipline or performance have to go into the personnel file. However, we strongly advise that such documentation be kept in a separate file and not be discarded.

  5. How should medical information be handled?
    It is very important that no medical information be kept in an employee’s personnel file. The Americans with Disabilities Act and other laws require a separate file for medical information so as to ensure it remains confidential. Employers should be aware that documentation relating to FMLA or workers’ compensation very often contains medical information, and therefore should be kept in a separate file. We recommend different files for medical, FMLA, and workers’ compensation.

  6. What should I do when someone calls for a reference about a former employee?
    Iowa law provides that employers who disclose work‐related information to a prospective employer about a current or former employee are immune from civil liability under certain conditions. The conditions include the following:
  • the former employee requests or authorizes the release of information
  • the information is work related
  • the work related information does not violate the civil rights of the former employee (e.g., disclosing their race, disability, etc.)
  • the information is not knowingly provided to a person who has no legitimate interest in receiving it
  • the information provided is relevant to the inquiry and provided with a good faith belief that it is true.

Although the law allows for civil immunity, the law is sufficiently vague that it is better to err on the side of caution when disclosing information. We recommend employers provide only objectively verifiable facts, such as date of hire, date of termination, salary, etc. Providing opinions or subjective information about employee performance, reasons for termination, etc. can be tricky, and should be done only if the former employee agrees in advance to give a release of liability for any such information.

Questions or comments, please contact the AttorneyConnect line at 800‐820‐6490, or email attorneyconnect@bradshawlaw.com.

Tags:  AttorneyConnect  Legal 

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