August 27, 2018
Author: Christopher Olmsted
A. Employee Handbooks
1. Benefits of Having an Employee Handbook
Generally, the advantages of implementing employee handbooks will outweigh their potential downside. Handbooks provide the following:
- Flexibility in administering policies;
- Promote fairness and evenhanded treatment;
- Strengthen recruitment efforts;
- Communicate benefits that might be overlooked;
- Enunciate standards of performance providing helpful guidelines to employees;
- May serve as invaluable tool to avoid or defend discrimination and wrongful discharge claims;
- Reinforce employee confidence in fairness and integrity of the employer policies;\\
- Serve as meaningful contribution to employee-employer relationship;
- Enhance morale and productivity;
- Assist the employer with compliance with obligations under expanding labor laws; and\\
- Avoid confusion regarding nature and eligibility for benefits.
2. Does Your Handbook Need to Be Audited?
It is important for employers to periodically review their handbooks regularly to ensure procedures and policies comply with any changes in applicable laws. Any revisions made to policies must be communicated to employees or the employer will risk a finding that the revised policy does not apply to employees who were not put on notice of the change. Additionally, supervisors should be familiar with such revisions to stay well-informed and avoid creating legal problems in managing employees. Make sure your handbook is tailored to your business needs, so just borrow provisions from another company’s handbook since a handbook should reflect the culture of your organization’s work environment.
3. Key Components of a Handbook
• At-Will Employment Statement and Effect
• Contradictory Express and Implied Agreements
• Equal Opportunity Employer Statement
• Medical Leaves of Absence
• Family and Medical Leaves Policies
• Safety Policies
• Workplace Security and Violence Prevention
• Policies Implicating Privacy Rights
• Internet, E-Mail and Electronic Communications
• Payroll Practices
• Benefit Descriptions and disclaimers
• Employee Classifications
• Grievance Procedure
• Reference Requests
• Separation Policies
• Right to Revise
• Dispute Resolution Procedures
• Acknowledgment Forms
A. Personnel Files, Recordkeeping and Retention
Accurate personnel files, containing both positive and negative aspects of work performance and conduct in the workplace, can be very instrumental in litigation when an employee attempts to misrepresent his or her work performance. Poorly prepared and/or managed files can become a significant liability to an employer. Employers must be aware of what documents belong in an employee file7 and how long the various documents must be maintained. Access must be restricted to only those who need to know the information contained therein to perform their job.
1. Retention Rules. Certain statutes and regulations require employers to maintain employment records for minimum periods. See Addendum 10. 7
a. Labor Code § 1174
“Every person employing labor in this state shall. . . . [k]eep, at a central location in the state or at the plants or establishments at which employees are employed, payroll records showing the hours worked daily by and the wages paid to, and the number of piece-rate units earned by and any applicable piece rate paid to, employees employed at the respective plants or establishments. These records shall be kept in accordance with rules established for this purpose by the commission, but in any case shall be kept on file for not less than two years. [Note: two year requirement superceded by ICW orders requiring three years, see below.]
b. IWC Orders at Section 7
Every employer shall keep accurate information with respect to each employee including the following:
(1) Full name, home address, occupation and social security number.
(2) Birthdate, if under 18 years, and designation as a minor.
(3) Time records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded.
(4) Total wages paid each payroll period, including value of board, lodging, or other compensation actually furnished to the employee.
(5) Total hours worked in the payroll period and applicable rates of pay. This information shall be made readily available to the employee upon reasonable request.
(6) When a piece rate or incentive plan is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. An accurate production record shall be maintained by the employer. All required records shall be in the English language and in ink or other indelible form, properly dated, showing month, day and year, and shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. An employee's records shall be available for inspection by the employee upon reasonable request.
c. Title VII of the Civil Rights Act of 1964 – One year. Employers covered by Title VII (at least 15 employees) must maintain all personnel records made or kept by the employer, including:
• application forms
• hiring records
• rates of pay and other terms of compensation
• EEOC form EEO-1 (Employer Information Report) for employers of 100 or more employees.
d. Age Discrimination in Employment Act (ADEA) – One year. Applies to employers with twenty or more employees. Very similar to Title VII record keeping requirements.
e. Fair Labor Standards Act (FSLA) – Two or Three years.
• Three years: Payroll records, certificates, agreements, plans, notices, and sales and purchase records
• Two years: supplementary records such as basic employment and earning records, wage rate tables, records of additions or deductions from wages paid.
f. Family and Medical Leave Act (FMLA) – Three years.
• Basic employment and earnings records
• Demographic information
• Individual’s leave of absence (leave dates, notices, disputes)
• Note: California Family Rights Act (CFRA) and Pregnancy Disability Act (PDA) requires the same records, but only for two years.
g. Occupational Safety and Health Act (OSHA) – Five years.
• Records of job-related injuries and illnesses must be kept for five years.
• Fill out and post annual summary
• Records related to exposure to toxic substances and blood-borne pathogen exposure must be retained for 30 years after termination of employment.
h. ADA – 1 year
• Personnel and employment records.
i. Break Down by Record Type
• Job applications, resumes, personnel or employment records relating to hiring, promotion, demotion, transfer, termination. 2 years (Title VII, ADEA, ADA, FEHA).
• Employee personnel files (hiring, job evaluations, promotion, demotion, discipline, discharge, training, tests, medical exams, transfer. 2 years (Title VII, ADEA, ADA, FEHA).
• Payroll records. 3 years. (Title VII, ADEA, ADA, FEHA, FLSA).
• Unemployment insurance records. 4 years. (FUTA, EDD)
• I-9 Forms. 3 years. (ICRA)
• Workplace injuries, first aid records. 5 years. (ADEA, OSHA, Cal-OSHA)
• Chemical safety/toxic exposure records. 30 years after termination. (OSHA, Cal-OSHA)
• Child labor certificates. 3 years. (FSLA, FEHA)
• Employment ads or job opening notices. 2 years. (ADEA, FEHA)
• Pension/welfare plans. 6 years. ADEA, FEHA
• Union and individual contracts. 3 years. (ADEA, FEHA)
• Social security and medicare. 4 years. (FICA)
• Leaves of absences, policies regarding same. 3 years. (FMLA, CFRA)
2. Contents of Personnel Files
California law requires employers to keep any documentation relating to medical information confidential and apart from the personnel file. This includes workers comp documents. Typical contents of a personnel file include: applications, resumes, attendance records, payroll records, discipline records, performance evaluations, training certificates, employee benefits information, and separation documents. Legal data or investigation records for discrimination/harassment complaints should be maintained separately, too.
3. Right to Inspect/Copy Personnel Files
a. Employees: Every current or former employee has the right to inspect the personnel records that the employer maintains relating to the employee's performance or to any grievance concerning the employee, pursuant to Labor Code section 1198.5.
Current and former employees have the right to not only inspect the file, but also to receive a copy of the contents. If a copy is requested, the employee or former employee can be charged the actual cost of copying.
Employees have the right to designate a representative to conduct the inspection of the file or receive a copy of the file; however, the representative must be authorized in writing by the employee to inspect or receive a copy of the file. An employer may take reasonable steps to verify the identity of current or former employee or his or her authorized representative. An employer may request a driver’s license or valid photo ID.
Disclosure of personnel information to outside sources, other than your designated representative, will be limited; however, an employer should cooperate with request form authorized law enforcement or local, state, or federal agencies conducting official investigations and as otherwise legally required.
Manner of Requesting Inspection or Copy: All requests for access, inspection, or copying of personnel records should be made in writing by the current or former employee (or his or her authorized representative) to Human Resources.
Timing of Inspection or Copying: An employer must make the contents available for inspection or produce a copy no later than 30 days after receiving the written request. If an employer and the current/former employee or representative agree in writing to a date beyond 30 calendar days, additional time will be allowed, as long as the agreed upon date does not exceed 35 calendar days from the employer’s receipt of the written request.
Location of Inspection: An employer should make the records available for inspection, and if requested, provide a copy, at either: the place where the employee reports to work, or another location agreeable to the employer and the requester (with no loss of compensation for going to that location to inspect or copy the records).
For former employees, the employer should make records available for inspection, and, if requested, a copy, at: a designated office, unless the parties mutually agree in writing to a different location. A copy may be received by mail and the company may require the former employee to reimburse for actual expenses.
If the former employee was terminated for violation of a law, or for violation of an employment-related policy involving harassment or workplace violence, the company may comply with a personnel records request by providing a copy of the personnel records by mail.
Limits to Requests: A company is not required to comply with more than 50 requests to inspect or receive a copy of personnel records filed by a representative(s) of employees in one calendar month.
An employer is not required to comply with more than one request per year by a former employee to inspect or receive a copy of his or her personnel records.
If an employee or former employee files a lawsuit that relates to a personnel matter against the employer, the right to inspect or copy personnel records ceases while the lawsuit is pending.
Exceptions to an Employee’s Right to Access Personnel Files:
An employee’s right to view his/her personnel file does not apply to the following: records relating to the investigation of a possible criminal offense; letters of reference; ratings, reports or records obtained prior to the employee’s employment or obtained in connection with a promotional examination; and employees of agencies covered by the Information Practices of 1977.
If an employee or applicant signs any instrument relating to the obtaining or holding of employment, he or she shall be given a copy of the instrument upon request pursuant to Labor Code section 432. The employer must do one of the following: (1) Keep a copy of each employee's personnel records at the place where the employee reports to work. (2) Make the employee's personnel records available at the place where the employee reports to work within a reasonable period of time following an employee's request. (3) Permit the employee to inspect the personnel records at the location where the employer stores the personnel records, with no loss of compensation to the employee.
In the event that an employee requests to review their personnel file, be sure to have a human resource or personnel representative present to ensure that nothing is inserted or removed from the file. Also, accurate records should be kept by the employer as to when and where the employee reviewed the file and what information, if any, has been provided to the employee.
b. Supervisors: Managers and supervisors cannot have unlimited access to confidential medical documentation. Instead, employers can and should only provide certain limited information to supervisors and managers that is necessary for work restrictions and reasonable accommodations.
c. Government Agencies: The Department of Labor should have access to records necessary to exercise the agency’s authority to enforce compliance with FMLA/CFRA rules. However, the agency cannot inspect such records more than one time during a 12 month period, unless the agency believes there has been a violation or are investigating a complaint.