Should an employer combine employee files after separation of employment?

No. Many employers believe that once an employee is terminated, the guidelines for organizing employee files are no longer applicable. This is not the case; the confidential nature of information continues to exist even after an employee is separated.

The information below discusses some reasons for the separation of employee files.

Americans with Disabilities Act

According to the Technical Assistance Manual of the Americans with Disabilities Act (ADA), “All information obtained from post-offer medical examinations and inquiries must be collected and maintained on separate forms, in separate medical files, and must be treated as a confidential medical record. Therefore, an employer should not place any medical-related material in an employee’s personnel file.” These requirements are not limited to current employees. 

Immigration forms such as Form I-9 and supporting documents

Immigration forms must be retained after termination, and if audited, an employer must produce those forms. Keeping the forms separate from personnel files (even for terminated employees) isolates the auditors’ reach to the Forms I-9, decreasing the opportunity for the auditors to find potential employment violations in the files and increasing the speed with which an employer can respond to the request to see the forms.

Forms that contain personal, confidential information 

Maintaining the separation of personal and sensitive information decreases the opportunity for misuse of that information. For example, if an individual is considered for rehire, the hiring manager may ask to see the individual’s prior file. Ensuring the prior file does not include protected class information keeps the review for rehire free from the appearance of improper review behavior. On a practical note, the rise of identity theft provides incentive to carefully handle individuals’ Social Security numbers, birth dates, addresses and similar information. By keeping the files separate, an employer decreases the chance of someone gaining access to the information and using it inappropriately. 

Employers should apply the same guidelines to files for terminated employee as to those for active employees. By doing so, an employer can decrease the risk of violating laws and of information being used improperly.