Department keeping shadow personnel files

Andrea

I'm looking for some information, reasons or best practices as to why a department outside of HR should not keep a set of employee files.

The issue is that we recently discovered our Production Manager has been writing up safety contracts with a few employees. HR has not been aware of the contracts and therefore they are not in the employee's personnel file. When we discovered that this was going on, the Production Manager's explanation was that he felt that the contract was between the employee and their supervisor only. However, if the employee violated the contract, they would receive a written warning (which would be forwarded to HR to be put in the personnel file). My feeling is that since there is no safety contract in the personnel file, then as far as we know, it doesn't exist and the employee is being written up for something based on a violation of a nonexistent contract.

The discovery of this practice came up in a meeting with many other people in attendance. We wanted to get back to the Production Manager outside of the meeting as to why this can't happen. I'm looking at finding any laws(?), or best practices that we can use to back up our reasoning. The manager is somewhat anti-HR (except when he wants to fire somebody) and routinely tells people not to go to HR with problems. He wants to solve everything within his own department. We could tell him that we need the contract in the official file but if he feels otherwise, he won't do it and we'd never find out that one even existed. I just don't want the company to get into trouble over something because accurate records or procedures weren't being kept.

If anyone has anything they can share, I'd sure appreciate it.

Hatchetman

What is your policy regarding written discipline? Do you require a copy of a written warning to be field in the official personnel file? Or can a copy just be kept with the superivosr and referenced in the performance ealuation if needed. Ths assumes, of course, the warning was appropriate and properly issued and a copy given to the employee.

Regarding your thought that the failure of the "agreement" to be filed in the official personnel file invalidates the written warning, I would have to disagree with it.

Consider the written warning for violation of the agreement to be in the same light as a written warning for not following superivsory instructions? Unless you require that all superivsory instructions be in writing and filed in the official personnel folder, why would this be any different?

Maybe one of the issues you need to resolve is to determine what actually must be filed in the official personnel file, and what can be kept in a local office personnel file, and what can be kept a supervisors' desk or "drop" file. All this assumes that employee reviews and access to the files will be allowed.

Andrea

Our policy states that corrective actions/warnings will be placed in the personnel file in HR and become a part of the employee's permanent record.

My concern with not having the safety contract in the personnel file and a written warning coming later is not that the warning would be invalid. I just worry about what could happen if an employee is discliplined for "violating their safety contract" when there is no official documentation of there ever being one.

The contract apparently spells out in writing what they need to do/not do and what happens if they violate it. It is signed by the employee and the supervisor (at least that is what I've heard). It just worries me that we don't have this piece of documentation, showing that they have been counseled or warned previously and we may not even know that we are missing it since we are not notified. I just think about the cardinal rule of HR, document, document, document.

I am not concerned with managers keeping copies of documentation in a file for their reference. I am concerned that they are keeping things that are not (and should be) in the official employee record.

Aren't there any best practices out there about keeping personnel records and the keeping or not keeping of duplicate/shadow personnel records? I thought for sure I had read something about it and now cannot find anything.

Theresa Gegen TX

This concerns me on a couple levels:

1. A contract is a legally binding document that binds both sides. In otherwords, the company is making a legally binding promise to the employee if it is actually a contract. This supervisor probably has no authority to make a legally binding promise for the company, and he should not do so.

2. I don't know what is in the "safety contract", but if it could discourage an employee from reporting a safety issue or, more likely, an accident or injury occuring at work, it is a bad thing!!

3. I don't know what you mean by saying this supervisor discourages people from going to HR. It's one thing if he encourages people to use the chain of command, it is another thing if he retaliates against people going to HR.

The supervisor needs to understand that he can't just do whatever he wants. But he'll never listen to HR, so if you can't get his boss on board, you will probably be out of luck!

Good Luck!!

Margaret Morford

Isn't it usually HR that has to answer an subpoena for documents? They should have the original of any and all documents dealing with the employee. Supervisors should be told they are welcome to keep copies of anything they want in their own file.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

HRBob

Many companies use a 3 or 4 step corrective action program that has a (written) oral warning as its first step. These are not required to be given to HR, but stay in the manage's file of the employee until the employee receives a second or written warning. Then the oral and written originals are forwarded to HR for the record.

The purpose of the (written) oral is a limited first step disciplinary action notice to "shock" or persuade the employee to follow the rules, etc. The oral warning is kept between the employee and the manager so the employee senses that the manager is given them one more chance before it becomes "official" by going to the "official" HR file.

Look on the safety "contract" as a (written) oral warning and as a last attempt of the manager to give the employee a chance before going official. This may help take the sting out of not having a copy of the "saftey" contract.

Obviously, the "contract" must accompany the written warning once one is issued for back-up and documentation. I would want to know if the department is being consistent with the use of safety contracts and consistent in giving warnings when the contract is violated. Inconsistency in warning application would be a greater risk (bias, adverse impact, etc.) than not having a copy of the contract in the HR files.

I recommend a review of the saftey "contract" to be sure it does not compromise any of the company's official policies or make employment promises that can be construed as an employment contract.

Because a document by management and signed by the employee is not in the HR files does not prohibit that document from being valid evidence in any judical hearing. However, it would be helpful prior to litigation to know what managers have done and are doing. Your frustration is understandable. Do you want to "spend" your energy on this or for a larger "battle" that has clear substance or threat to the company?

hrqueen

Does your state law provide employees the right to review their files? If so, all documentation that can be used in a disciplinary action or performance issue should be available to the employee. If HR is unaware of any such documentation, it would be difficult to produce. Remember, there's a good chance that every comment written in an employee's record may be examined by at least two other people: the employee and a judge (in the event of a legal action).

It is my understanding that documents that have not been provided to the company's attorney prior to any legal proceeding is not covered by privilege.
And, I have been told, if you are a union shop, and a grievance goes to arbitration, any documentation not provided to the union, cannot be used on the company's behalf. When separate files are maintained by HR, managers, supervisors, etc. it would be easy to overlook documents pertinent to any legal action, performance reviews, etc.

I would discuss this matter with your labor attorney and use whatever he/she says as the appropriate guideline.

Gillian

I don't think that you will find any laws governing the keeping of separate HR files by supervisors, and I think all of us struggle with the issue. I think that most supervisors keep a file on their employees and I don't have a problem with that, but maybe this is because I have come to the conclusion that it will happen whether I like it or not. The key is to try to get the cooperation of supervisors so that you have copies of key documents such as formal corrective actions and in your case, the safety contracts, whatever they are. It would also be a good idea to have trained supervisors so that they know how to put together a proper corrective action. In my state, employees have the right to review their personnel files, and I tell managers and supervisors that employees have the right to look at the ones in their department just as they do in the HR department.