Labour & Employment Newsletter
Personnel Files: What are the best practices?
Employers have a legal obligation to maintain up-to-date records of employee information. This newsletter addresses common questions about personnel files and identifies best practices to protect organizations in the long run.
Why keep personnel files?
Employers must maintain up-to-date employee records. Under the Labour Standards Code (the “Code”), Nova Scotian employers have to keep records for each employee for at least three (3) years after the work is done. These records must include the following information:
Section 15 of the Code lists all of the information that employers have to keep.
Employers in unionized workplaces may have additional requirements or restrictions under a collective agreement about what to include in personnel files.
Accurate and current personnel records guide human resources decisions. Having the right information in a personnel file can also protect employers if faced with a need to conduct an investigation or respond to a lawsuit.
What else is included in a personnel file?
In addition to the information that must be maintained under the Code, the following documents should be kept in an employee’s personnel file:
- The job posting/advertisement and employee’s resume and/or job application;
- The offer letter and/or employment contract;
- Consent forms related to the collection of personal information;
- Payroll and tax credit or deduction forms;
- Acknowledgement forms for workplace policies or rules; and
- Copies of any certificates, diplomas and/or credentials the employee has that are relevant to their employment.
Documents containing sensitive information, including medical information and accommodation requests, need more analysis as an employer might need to take extra steps to ensure that only employees who absolutely need to see that information will have access to it. One possible approach is to keep sensitive information in a separate sub-file or envelope kept in the personnel file. If the personnel file is electronic, documents containing sensitive information should be password protected.
Accommodation Request Documentation
Requests for accommodation could be based on health or other reasons, such as religion or family status. Any of those requests could involve the sharing of sensitive information. Only information that is required to meet the duty to accommodate should be collected and retained. Given that the information might be sensitive, employers should take appropriate steps to ensure that employee privacy is respected and only those employees with a legitimate need to see the information are able to access it.
An employee’s disciplinary record is important. It can support the employer’s decision to discipline employees and protect an employer if it faces a grievance, complaint or other legal action as a result of disciplining or discharging an employee. Without such records, it can be difficult for an employer to prove that it had just cause, and bear in mind that it is the employer who would have to show that evidence to an arbitrator or court, to prove that it had just cause.
Where and how disciplinary records are kept depends on the employer’s practices and if there is a collective agreement. Only those who need access to the records – such as the employee’s supervisor or the human resources manager – should be able to access these documents. Disciplinary records should be removed from an employee’s personnel file in accordance with the requirements in any applicable workplace policy or collective agreement.
Accident Reports and Workplace Investigations
Accident reports and workplace investigations (whether conducted by an employee or by an external investigator) are not usually kept in an employee’s personnel file. While it is important to keep these documents, they are more appropriately kept in a file specific to the incident in question. As with personnel files, the documents should be accessible to only those employees with a legitimate need to access them.
Should Employers Just Keep It All?
Personnel records are valuable tools, but employers do not have carte blanche to gather and record all information about their employees. Employers operating in Nova Scotia’s public sector, including hospitals, municipalities, universities, and post-secondary institutions are subject to the Freedom of Information and Protection of Privacy Act (“FOIPOP”) that may restrict the type of information collected or the purpose for which that information can be used.
Unionized employers are subject to collective agreements that might contain restrictions too. Such restrictions may limit the amount of information kept, require employee consent before collecting information, require information to be accurate and have a legitimate employment purpose, require employees to access their information and restrict access to information on a “need-to-know” basis. Collective agreements often contain “sunset clauses” that limit how long any disciplinary records can be kept or relied upon.
What Can Employers Do Better?
A key part of effective file management is to ensure that there is a clear policy regarding personnel files, both in terms of who can access them, what security measures are in place, and how files are maintained and updated.
Whether employee records are stored electronically or in physical form, employers are wise to develop and follow a record retention policy. Records should be kept up-to-date and not include outdated or inaccurate information. Unnecessary duplication should be avoided – only the final or signed version of documents should be kept.
The effective and efficient management of personnel records helps to preserve the integrity, reliability, and accountability of the record. Failing to establish appropriate protection and control regarding the retention and security of personnel records can expose an employer to legal liability.
Maintaining best practices in file keeping and record management are essential for employers to ensure operations run effectively. Employers who establish policies for the maintenance of personnel files and record management are in a better position to meet their legal obligations and responsibilities.
This newsletter is produced by Wickwire Holm to keep our clients and friends informed of developments in the law and emerging issues. It is intended for general information purposes only. In preparing and circulating this newsletter, Wickwire Holm is not providing legal or other professional advice. Readers are encouraged to consult their professional advisers before taking any action on the basis of information contained in this newsletter. If you have any questions about any issues raised within this newsletter or a related issue, please contact us at email@example.com or 902.429.4111.