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Preservation, Safekeeping and Retention- Part 3

Preservation, Safekeeping and Retention, Part 3

In this, the third installment of the series, we will look at how to handle files of employees that are no longer with the city’s employment and also the hiring records of those who applied for employment with the city, but were never hired. 

Terminated Employee Files

Whether the employee was terminated by the city or the employee left on their own, you will need to be aware of the requirements for these particular employee files.  Many of these records will need to be maintained 60 years or more after the employee leaves employment.  For answers on the retention of specific information within personnel files, go to the searchable documents at the Kentucky Department of Libraries and Archives (KDLA) website

With the retention schedule in mind, does your city have a regular (weekly, monthly or quarterly) disposal plan for documents that have exceeded record retention guidelines?  If not, it is a good time to get one in place.  Who will oversee the program and verify the records have been kept according to the guidelines?   How often will this be done? 

Once you have determined that the employment records have met or exceeded record retention requirements, they must be disposed of via shredding, burning or otherwise fully destroying these records prior to disposal.  This must be done within the destruction guidelines of the KDLA, including the completion of the Destruction Certificates

Lastly, are any files that are related to a current or potential lawsuit maintained by legal counsel or in some other way marked as exempt from any disposal process until after the suit is closed? Keep in mind that under discovery and e-discovery laws, it is illegal to destroy documents related to a current or potential lawsuit.

Hiring Records

These records should include any job requisitions and job postings, interview notes, reference checks, and other hiring records such as applications and resumes.

These records can be accessed by the hiring manager as well as by HR, so they should not include any information irrelevant to the job or to the hiring decision, such as protected class information, arrest records and Social Security numbers (SSNs).      

Once the hiring decision has been made, any information on applicants that were not hired must be maintained for two years, or at the close of any litigation that was filed in regards to the failure to hire the applicant, whichever is longer.   Also, any information retained on applicants not hired would not be subject to open records. 

Next week will look at the issues with files that are kept solely by managers.  For questions on this or other personnel matters, contact Andrea Shindlebower Main, personnel services specialist.

 

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Preservation, Safekeeping and Retention- Part 2

Preservation, Safekeeping and Retention – Part 2

The second installment of city personnel files will look at what should be contained in the different files and what within those files is subject to open records. Whether your personnel files are retained electronically or in paper form, most cities have at least four or five separate employment record files for each employee, which include:

  • The main personnel file;
  • The medical/confidential file;
  • Drug testing results;
  • Payroll records; and
  • Form I-9 files.

The main personnel file will contain employee performance evaluations, training information, handbook and drug testing acknowledgements.  The following list will assist in applying the Open Records Act to information in the main personnel file:

  • Name and current address:
    • Name – subject to open records
    • Home address – not subject to open records
  • Completed and signed Employment Application Form:
    • A public employee's name as well as portions of the employee's resume and or application reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment are subject to open records.
    • A public employee’s home address and anything that would be considered personal in nature would not be subject to an open records request.
  • Date of birth – not subject to open records
  • Social Security number – not subject to open records
  • Date of employment – subject to open records
  • Position title – subject to open records
  • Departmental assignment – subject to open records
  • Salary – subject to open records
  • Record of awards, if timely – subject to open records
  • Disciplinary action, if timely:
    • Once final action has been taken this is subject to open records.  There can be exceptions to some of this information.  For example, if the discipline occurred in regards to a sexual harassment complaint, it is possible to keep the identity of the complainant from being disclosed.  This would need to be reviewed on a case-by-case basis and should involve the assistance of the city attorney. 
  • Completed training programs – subject to open records
  • Past changes in employment with the city, such as demotions or promotions – subject to open records

The medical/confidential file contains all information related to an employee’s medical condition, including pre-employment testing results, workers’ compensation information and FMLA forms.  It can also contain any other confidential information such as background or credit checks.  None of the information in this file is subject to open records.

Drug testing results are required to be kept in separate files and are confidential and not subject to open records.  Only those with an absolute “need to know” should be granted access.

Contents of the payroll file will include W-4s, state withholding forms, garnishments, pay information, wage deduction acknowledgements and time-keeping records.  All time-keeping records and salary information is subject to open records, but anything related to deductions, garnishments, or marital or family status would not be subject to open records.  W-2s and 1099s are also subject to open records; however, the city would have to redact any personal info such as Social Security numbers, home address, child support obligations or any other deductions. 

Form I-9 and any relevant documentation should never be left in an employee’s personnel file.  It is recommended that all employee Form I-9s be kept in one file in alphabetical order.  This allows easy access if the Department of Labor decides to review them.  Also keep in mind that this information is confidential.  As with all confidential information, access is highly restricted and never subject to open records requests.

Also, keep in mind that additional files may be necessary to maintain hiring records, investigations, equal employment opportunity (EEO) documents as well as other employment-related documents. Cities must give special consideration to where and how they maintain these files, limiting access to only those with a need to know and protecting applicants and employees from discrimination, identity theft and breach of privacy. 

Any city that is required to maintain equal employment opportunity (EEO) data collection should keep this information separate from personnel files and used only for reporting purposes such as for an affirmative action program (AAP), the Form EEO-1 and internal diversity tracking.  Similar to the Form I-9, it is best to keep all forms in alphabetical order in one file.  Never allow EEO records to be attached or kept with other hiring or employment records.  This information is also not subject to open records.

If you receive a request for something in a personnel file that is not addressed in this article, contact Andrea Shindlebower Main, personnel services specialist, KLC Legal Department. Next week, Part 3 will look at how to handle files of employees who are no longer employed by your city and those that were not hired by the city.

 

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Preservation, Safekeeping and Retention- Part 1

Weekly HR News – City Personnel Files

Preservation, Safekeeping and Retention

This series will include such things as how to maintain them, what needs to be maintained and what documents are subject to the Open Records Act. We will review some of the legal requirements in regards to personnel files as well as several practical tips.

First, let’s look at some issues to be aware of when creating a personnel filing system.  Personnel files can be maintained in paper form or maintained electronically. No matter what format is used, the preservation, safekeeping and retention requirements that you need to know are the same.

If the city maintains the files electronically, you need to ask these questions:

  • Does the city have a good document management system?
  • Has the city established clear guidelines regarding which employees have access to which files, as well as when and where they can review?
  • Has the city implemented verified security and password protections to ensure access is provided only to those with a need to know?
  • Does the city have a backup system in place to ensure data is not lost?
  • Does the city have a secondary backup system in the event both the software and its backup are destroyed?
  • Has the city trained users on how to properly use and safeguard information in the document management system?
  • Does the city have a policy in place regarding the steps to be taken in the event there is a breach of security?
  • Do you know what information is subject to Open Records, who has the authority to access the records when a request is submitted and what the law is in regards to response times?
  • Is this information contained in your city personnel policy?

Or, if the city maintains paper files of personnel records, you need to ask these questions:

  • Are the personnel files maintained in a locked and secure cabinet?
  • Has the city established clear guidelines regarding which employees have access to which files, as well as when and where they can review?
  • Have all documents that contain protected information been removed from the main personnel file?  Remember, that documents which include medical information, Social Security numbers or other protected class information such as age, race, gender, national origin, disability, marital status and religious beliefs should not be accessible to supervisors, or anyone making an open records request.
  • Are personnel files organized in a logical way so that information within them is easy to find?  The two most common practices are to maintain files in chronological order or to have files with different sections for different types of documents such as performance information and training documents.
  • Do you know what information is subject to Open Records, who has the authority to access the records when a request is submitted and what the law is in regards to response times?
  • Is all of this information contained in your city personnel policy?

How long you keep the records that you have maintained is determined by the Kentucky Department of Libraries and Archives (KDLA).  The searchable Record Retention Schedules can be found on the KDLA website.  The website also contains important information on the proper destruction of records.

Next week will look at the law regarding what should be in what files, as well as some good practice tips.  For questions on this or other personnel matters, contact Andrea Shindlebower Main, Personnel Services Specialist, with the KLC Legal Department

 

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Open Meetings and Personnel Issues
Posted on December 29, 2015 by Andrea Shindlebower in Open Meetings Issues

Open Meetings and Personnel Issues

The Open Meetings Act (the “Act”), found in KRS 61.805 through 61.850, was adopted by the General Assembly to ensure that governmental decision making is handled in the public view. It requires meetings of public agencies, including a city’s legislative body, to be open to the public, except for expressly authorized closed sessions. The provisions of the Act are mandatory and are to be liberally construed in favor of an open government.

However, the Act does provide certain specific exceptions to the requirement that meetings of a public agency be open to the public. These exceptions are found in KRS 61.810.  For purposes of this article, the personnel exception is found in KRS 61.810(1)(f) and states “Discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting that employee's, member's, or student's right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret.”

As the last sentence states, this exception does not include discussing general personnel matters such as compensation, creation of a new position, expansion of a department, resignations or independent contractor negotiations.  The only matters that can be discussed in a closed meeting (also known as an executive session) are those that specifically deal with appointments, discipline, or dismissal of employees or officers.  This exception also does not apply if the officer or employee who is the subject of the deliberation or hearing requests a public hearing. 

In addition, KRS 61.815 sets out the requirements for holding a closed session. It provides:

  • Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session;
  • Closed sessions may be held only after a motion is made and carried by a majority vote in an open public session;
  • No final action may be taken in a closed session; and
  • No matters may be discussed in a closed session other than those publicly announced prior to convening the closed session

Thus, a quorum of the public agency must be assembled in the meeting room, the meeting must be convened as an open meeting pursuant to proper notice, and the legislative body must announce that a closed session will be held and must identify the sections of the Act authorizing the closed session.  For example, in regards to hiring a new police chief, the legislative body would move to go into closed session pursuant to KRS 61.810(1)(f) in order to discuss the appointment of a police chief.  Once the discussion is complete the motion would be made to return to open session to vote on the appointment. 

For questions on this or other personnel matters, contact Andrea Shindlebower Main, personnel services specialist.

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