Should separate files be maintained?

With a couple of exceptions, whether or not required records are kept in an employee's personnel file, or in separate recordkeeping files, is up to the employer.

The exceptions are:

medical files, and
self-identified veterans and individuals with disabilities.

Separate files as a convenience. Employers might consider keeping all records required by law in files separate from an employee's personnel file, which would contain information applicable only to the individual employee (such as a resume, performance evaluations and work history). If required records are kept in separate files, they may be easily produced to prove compliance to government agencies without providing all other personnel information not relevant to the government investigation. This is one way to safeguard employees' privacy interests as well as to protect the employer from government investigators poking around in their files.

Example: An employer might keep all I-9 forms required under the Immigration Reform and Control Act in one central file that contains only I-9 forms, rather than in the file of each individual employee. If the employer is then asked to produce the I-9 records by an appropriate government agent, the employer can easily produce only the requested information without giving the agent access to other personnel information. Separating out I-9 files can also lessen any appearance of discrimination. With fewer people having access to the I-9 files, fewer people would know an employee's citizenship status or national origin.

Medical files. The Americans with Disabilities Act specifically requires that employers keep employee medical records confidential and that medical information be filed separately from other employee information. Keeping medical records confidential involves more than not disclosing their contents. It also requires that:

Records be kept in an area where access is restricted, for example, in a locked cabinet.
Access to medical records should be strictly limited to those persons who have a need for the information.

The ADA restricts access to medical records so that employment decisions will not be made based on an employee's disability. By separating medical records from other employee information, the records are not available to influence job-related decisions.

Example: A terminated employee claims that the discharge was the result of the employee's having AIDS. The medical records reveal that the employee does have AIDS. The supervisor who fired the employee can defend the charge by showing that he or she did not have access to the employee's medical records and did not know that the employee has AIDS.

The Family and Medical Leave Act requires that the following records be maintained in separate files and treated as confidential medical records:

medical certifications;
recertification;
medical histories of employees or their family members.

Who has a need for medical information? Medical information might be needed in limited circumstances involving:

work restrictions or employee duties and necessary accommodation;
necessity for emergency medical treatment;
compliance investigations.

Self identification. Federal contractors whose affirmative action obligations require that they invite disabled veterans, veterans of the Vietnam era and individuals with disabilities who wish to benefit from the affirmative action program to identify themselves must keep a separate file on persons who have self-identified. The file must be provided to the Office of Federal Contract Compliance Programs upon request.