Write It Down

Documenting Personnel Info Makes Good Legal Sense

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Practice Management Feature – May 2013

Tex Med. 2013;109(5):43-45.

 By Crystal Zuzek 
Associate Editor

Appropriately documenting, maintaining, and storing employee personnel files may seem tedious, but experts say those tasks are essential to ensuring that employers comply with state and federal law. And, thorough employee personnel records can help physicians defend themselves if an employee sues the practice.

The Texas Medical Association recommends all employees, including physicians, have well-maintained personnel files containing specific documents, as well as government-mandated forms. (See "Personnel File Documents List.") Personnel files – electronic or paper – should be securely stored and accessible only by authorized employees.

"Good records are the basis for protection in the face of a lawsuit. They can also be helpful when determining employee raises, promotions, or disciplinary actions," said TMA Associate Vice President of Human Resources Jeppe G. Ross.

Dallas labor and employment attorney W. Stephen Cockerham says documenting an employee's work history and job performance in the personnel file is especially relevant when making employment determinations.

"If an employee has been tardy several times and the personnel file reflects a history of being tardy and documents warnings and disciplinary actions related to the infraction, termination of employment may be appropriate. The employer needs to go through the process of documenting the tardiness, counseling sessions, warnings, and any discipline to establish a basis for termination," he said.

When an employee's job performance presents a problem, Mr. Cockerham says accurate performance evaluations are a must.

"In the event an employer wants to terminate an employee for poor performance, having a history of that poor performance in the personnel file is important. Otherwise, the employee could possibly claim discrimination," he said. 

 Keep It Separate

Mr. Cockerham says employers should store each employee's Employment Eligibility Verification (I-9) form separately from other documents. Employers must complete an I-9 form for each employee within three business days after hiring the employee.

"There are technical requirements related to completing the form and related to the documents that may be accepted to support the new hire's identity and authorization to work in the United States," he said. "Often in smaller businesses, the person completing the form doesn't have adequate training, and the form is often filled out incorrectly."

Common mistakes Mr. Cockerham cites include incorrectly dating the document or failing to have the employee sign it.

"I recommend periodic audits of the I-9s to ensure compliance," he said.

I-9 forms identify which documents employees may submit to verify their employment eligibility. The U.S. Department of Homeland Security's I-9 rule states that only unexpired documents such as passports and alien registration receipt cards or permanent resident cards are acceptable forms of identification. You can download I-9 forms at www.uscis.gov/files/form/i-9.pdf.

The Texas Workforce Commission says employers must keep I-9 records for three years after the date of hire or for one year after an employee leaves. But the commission recommends keeping all employment records for at least seven years after an employee leaves to exhaust all the statutes of limitation.

Mr. Cockerham says federal law outlines the following additional record retention requirements: 

  • Occupational Safety and Health Administration (OSHA) and injury records: five years;
  • Payroll-related records: five years;
  • Employee benefits records: six years; and,
  • Federal Insurance Contributions Act (FICA) records: four years.  

Additionally, the Americans with Disabilities Act of 1990 requires employers to keep any employee medical records in separate, confidential files.

Especially for Texas Employers, a Texas Workforce Commission publication, contains a sample medical information confidentiality policy that defines medical information and outlines who can access the information and potential disciplinary actions for violating the policy.

Because maintaining personnel files has legal implications, Mr. Cockerham advises medical practices to make sure relevant staff members receive training. He says training should focus on: 

  • What the file should and shouldn't contain;
  • The treatment of I-9 forms and employee medical information;
  • The importance of maintaining confidentiality;
  • Secure record storage; and
  • Appropriate wording of notes related to employee counseling sessions, discipline, and evaluations.  

Mr. Cockerham explains some statements can get an employer in trouble when facing a lawsuit filed by an employee. He says employers should avoid using overstatements that contain the words "always" and "never." Employers should also refrain from editorializing with unprofessional written comments like "I can't wait to hear his excuse today."

A customized manual in a physician's practice can aid in effective communication and in implementation of human resources policies and procedures. (See "TMA Policies, Procedures Guide.") For additional information about state and federal employment rules, as well as tips to stay out of legal trouble, see "Avoiding the Courthouse," August 2012 Texas Medicine, pages 33-38; and "Follow the Law," November 2010 Texas Medicine, pages 49-53. 

The Art of Interviewing

While keeping accurate personnel files on all employees is an important human resources responsibility for any medical practice, Ms. Ross says physicians also need to understand federal and state laws that preclude them from asking certain questions during interviews with job candidates.

Title VII of the Civil Rights Act of 1964 prohibits employers with 15 or more employees from discriminating based on race, color, religion, sex, or national origin. The Age Discrimination in Employment Act prohibits questions about a person's age. The Americans with Disabilities Act protects qualified individuals with disabilities from discrimination in employment, among other things.

For more information about federal job discrimination laws, visit the U.S. Equal Employment Opportunity Commission website.

The Society for Human Resource Management advises employers to avoid interview questions relating directly or indirectly to age, sex, race, color, national origin, religion, or disabilities. The Americans with Disabilities Act contains specific prohibitions against asking an applicant if he or she has a disability and about an applicant's workers' compensation history.

The society also says employers may ask if anything precludes an applicant from performing the essential functions of a position, but the interviewer should review the essential functions of the position with applicants so they can make a determination.

"Both human resources professionals and managers who will be interviewing should be well versed in federal and state law that regulates the types of questions that may be raised in an employment interview. If you are not sure if a question violates federal or state law, you are better off not asking the question and checking with your legal counsel," Ms. Ross said. 

Crystal Zuzek can be reached by telephone at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by email.

SIDEBAR

Personnel File Documents List

TMA recommends employee personnel files contain the following documents: 

  • Resume,
  • Employment application,
  • Reference check,
  • Background check,
  • Wage and tax statement (W-4),
  • Job description,
  • Payroll information,
  • Health insurance enrollment form,
  • Long-term disability enrollment form (if offered),
  • 401(k) enrollment form (if offered),
  • Personnel policies acknowledgment form,
  • Attendance records,
  • Employment letter or offer,
  • Salary change information (as appropriate),
  • Performance reviews,
  • Warning or disciplinary letters,
  • New employee checklist,
  • Training checklist,
  • Signed receipt for clinic property (keys, identification badges, etc.),
  • Signed confidentiality statement,
  • Emergency contact information, and
  • Letter of resignation or termination record. 

Note: The employment eligibility verification form (I-9) and medical information records should be stored separately from the personnel file.

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SIDEBAR

TMA Policies, Procedures Guide

To help medical practices implement and enforce their own policies and procedures, TMA offers for purchase Policies & Procedures: A Guide for Medical Practices. A hard copy of the guide with customizable CD is $295 for members and $395 for nonmembers. The customizable CD alone is $255 for members and $355 for nonmembers.

To order the guide, contact the TMA Knowledge Center by telephone at (800) 880-7955 or by email.

Human resources attorney Regina Williams consulted with TMA in developing the human resources portion of the policies and procedures guide. She has some advice to help medical practices effectively implement those policies and procedures.

She says the office manager or other designated human resources professional should obtain written proof that the practice furnished new employees with the guide and instructed employees to read the guide. She adds it's a good idea for a practice to conduct an orientation session.

"Practices should arrange an orientation session with all employees to explain the new policies and procedures guide. The practice should require proof of receipt of the manual and obtain in writing proof the employee attended the orientation session. The employee also has the opportunity to ask questions during the session," she said.

As the practice updates the manual, Ms. Williams says the same training and notification procedures should be required, with a written record of attendance and written proof the employee received the revised policies.

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