This column is sponsored by the Lower Columbia Human Resource Management Association. LCHRMA represents a gathering of Human Resources professionals. Join us each month for a luncheon and training that covers many aspects of employment law and human resources. Please register online. www.lchrma.org
•Friday Sept. 28: (8:30 a.m. – 12:30 p.m.)
“Emotional Intelligence” — Deborah Jeffries (HR Answers)
Tongue Point Vista Way Café (Formerly the Bistro),
37573 US-30, Astoria, OR 97103
•Wednesday Oct. 3: (11:30 a.m. – 1 p.m.)
“Own Your A-Game” — Diane Allen:
Fort George Brewery, 1483 Duane Street Astoria.
“If I maintain confidential information in a secure manner, my silence about this information becomes my prisoner. If I let it slip because of any reason (like a loose tongue), I become its prisoner.”
— Arthur Schopenhauer (loosely translated).
HR Questions and Answers:
Q. What kinds of files and personnel records should be kept confidential?
A. The short answer is all personnel files should be considered confidential and kept under lock and key or if maintained in electronic files with restricted access. Human Resources (HR) staff members are entrusted with private, confidential information about the organization and its employees. Confidentiality breaches could lead to employees losing trust, harm to the organization or employee reputations, as well as the ever looming threat of identity theft and/or litigation.
In addition, separate files (also secured and private) regarding medical information is a source of concern. The Health Insurance Portability and Accountability Act (HIPA) requires confidentiality of information connected to employer-provided health insurance. The Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) prohibit disclosure of employees’ health and medical-related information. HR best practices recommend that employers create a separate file for confidential employee information such as health insurance selections, worker’s compensation injury details, accommodations for workers with disabilities and documents related to leaves of absence under the Family and Medical Leave Act (FMLA). In addition, HR should designate a privacy officer who has sole access to these files. The files should be stored securely in a different location from regular employment files and accessible to others by request submitted to the HR department’s privacy officer.
Q. Should investigative files be kept as part of the personnel files?
A. No. When an HR staff member handles a workplace investigation, the normal course of action is to create a file for witness statements, copies of legal research, notes about witness credibility and employment actions recommended by HR leadership or legal counsel. Although the workplace investigation may involve one or more employees, never keep investigative materials in the personnel files of the employees involved in the investigation. Maintaining a separate file folder for investigative materials is critical. Materials contained in an employee’s personnel file may become discoverable if the issue escalates from an informal complaint to a formal complaint or a labor union grievance or litigation filed with a government enforcement agency or the courts. Discoverable means the government agency, labor union or court could demand to inspect the materials, which could seriously affect the employer’s legal defense.
Disclaimer: No response to the above queries is intended as legal advice. The answers are general answers based on general questions. If you need legal advice, please consult an attorney.