Recordkeeping/Access to Personnel Files

Transcription

1 Recordkeeping/Access to Personnel Files February 2014 Various federal agencies have their own reporting and record retention requirements. See, Federal Recordkeeping Requirements. Individual state and local statutes and regulations have requirements that must also be considered. Some of the requirements apply to most all employers, while others apply primarily to government contractors and subcontractors. In addition, many of these requirements are dependent on the number of employees employed by a company. If a state does not appear on the following chart it is due to our not finding any evidence a statute exists for that state. To check whether there is pending legislative issues or recently enacted legislative changes for your state(s) please click here. To access additional SHRM State Law & Regulation Resources click here. Please note: This material is for personal use only and is protected by U.S. Copyright Law (Title 17 USC). It is provided as general information only and does not constitute and is not a substitute for legal or other professional advice. Reliance upon this material is solely at your own risk. Click the letter corresponding to the state name below. A C D F H I K L M N O P R U V W State Alabama Statute Sec. 1, H. 332 Notwithstanding any other laws, rules or regulations to the contrary, when a document pertaining to disciplinary action, including, but not limited to, written reprimands, suspensions, notes pertaining to oral reprimands or counseling's regarding a state employee, or notes pertaining to matters that may be used regarding the employee in a disciplinary action are placed in the employee's personnel file, the agency that is the employer must supply a copy of the documentation to the employee no later than 10 days after its inclusion in his or her personnel file. If the information is not provided to the employee within 10 days as required, the reprimands or notes must be removed from the employee's file and may not be used against the employee in any future proceeding or disciplinary action A school district employee, or any person designated in writing by the employee, may, upon request, review all of the contents in his or her personnel file and receive copies of any documents contained in the file. No document shall be withheld from the employee or his or her representative. A representative of the employee may accompany him or her during the personnel file review. The employee may answer or object in writing to any material in his or her file and the answer or objection shall be attached to the appropriate material.

2 CHILD LABOR; Posting of notice of law; time records; meal or rest period. (a)every employer shall keep posted in a conspicuous place where any person under 19 years of age is employed, permitted, or suffered to work, a printed notice stating the maximum number of hours persons under 19 may be permitted to work on each day of the week as set out in Section The printed form of the notice shall be furnished by the department. The employment of any person for a longer time period in any day so stated, or at any time other than as stated in the printed form of notice, shall be deemed a violation of this chapter. (b) Each employer shall keep on or about the premises at which any person under 19 years of age is employed a separate file for each employee under 19 years of age. The file shall contain the employee's name, home address, date of birth, date of hire, proof of age, school of attendance, and time records which shall state the number of hours worked each day, starting and ending times, break times as listed in subsection (c), and any other information the department may require. The employer shall verify each minor's age using documents recognized by the Federal Employees Identification Laws. The employer shall keep these records on file for not less than three years CHILD LABOR. Eligibility to work form When required; Child Labor Certificates. (a) No person under 16 years of age shall engage in any occupation mentioned in Section unless he or she has secured and has with him or her an eligibility to work form as provided in this chapter. (b) No person, entity, franchise, corporation, or division of a corporation shall employ, permit, or suffer to work any person 14 or 15 years of age in any occupation, except in agricultural service, unless the person, entity, franchise, corporation, or division of a corporation procures and keeps on file for the inspection by the officials charged with the enforcement of this chapter, an eligibility to work form for every person 14 or 15 years of age and a complete list of those persons 14 or 15 years of age employed therein. (c) Any person, entity, franchise, corporation, or division of a corporation that wishes to employ, permit, or suffer to work any minor 14 or 15 years of age in any occupation, except in agricultural service, shall obtain a Class I Child Labor Certificate from the department for each location where a person, entity, franchise, corporation, or division of a corporation wishes to employ a minor 14 or 15 years of age. Such employment shall be in accordance with all other sections of this chapter. (d) The certificate shall allow the employment of minors 14 or 15 years of age to work only outside of school hours or during vacation periods and only in occupations not prohibited by this chapter for persons of these ages. (e) The employment of a minor 14 or 15 years of age shall be revoked or suspended by the department if the minor's regular school attendance and performance record is not satisfactory to the head administrator or, if home schooled an instructor, of the school which the minor attends. The revocation or suspension shall be processed by the department upon notification by the school. (f) Any person, entity, franchise, corporation, or division of a corporation that wishes to employ, permit, or suffer to work any minor 16 or 17 years of age in any occupation, except in agricultural service, shall obtain a Class II Child Labor Certificate from the department for each location where a person, entity, franchise, corporation, or division of a corporation wishes to employ a minor 16 or 17 years of age. Such employment shall be in accordance with all other sections of this chapter. (g) The department shall issue Class I and Class II Child Labor Certificates to any person, entity, franchise, corporation, or division of a corporation that applies to the department. The fee for a Class I or Class II Child Labor Certificate shall be fifteen dollars ($15). The certificates shall be issued

3 Alaska annually. (h)(1) The application for the child labor certificate shall contain all of the following information specific to the location of the minor's employment: a. The name, address, and telephone number of the person, entity, franchise, corporation, or division of a corporation that wishes to employ, permit, or suffer to work any minor. b. The type of business or entity, the federal employer identification number, the names of all incorporators, owners, members, or partners of the business or entity. c. Any other information as required by department regulation. (2) The Class I and Class II Child Labor Certificates shall contain all of the following information: a. The name of the employer. b. The type of business the employer maintains. c. Any other information as required by department regulation. (3) If a person, entity, franchise, corporation, or division of a corporation, employs a minor between 14 and 17 years of age without a proper child labor certificate, the person, entity, franchise, corporation or division of a corporation shall pay a penalty of fifty dollars ($50) and then shall obtain a certificate in the proper manner (a) An employer shall permit an employee or former employee to inspect and make copies of the employee's personnel file and other personnel information maintained by the employer concerning the employee under reasonable rules during regular business hours. The employer may require an employee or former employee who requests copies of material under this subsection to pay the reasonable cost of duplication. (b) This section does not supersede the terms of a collective bargaining agreement. (c) In this section, (1) "employee" means a person employed by an employer; (2) "employer" means a person who employs one or more other persons and includes the state, the University of Alaska, the Alaska Railroad, and political subdivisions of the state (c) A state employee has the right to examine the employee's own personnel files and may authorize others to examine those files. (d) An applicant for state employment who appeals an examination score may review written examination questions relating to the examination unless the questions are to be used in future examinations Child Labor. Employment of Minors Under 18 Years of Age. (a) Nothing in this section authorizes noncompliance with any federal or state law or regulation, or municipal ordinance establishing a higher standard. If more than one standard within this section applies to a single activity the higher standard is applicable. (b) An exception for apprentices applies only when (1) the apprentice is employed in a craft recognized as an apprenticeable trade; (2) the work of the apprentice in the occupations declared particularly hazardous is incidental to the training; (3) that work is intermittent and for short periods of time and is under the direct and close supervision of a journeyman as a necessary part of such apprentice training; and (4) the apprentice is registered by the bureau of apprenticeship and training of the United States Department of Labor, or is registered by a state agency as employed in accordance with the standards of state apprenticeship and training approved by the commissioner of labor and workforce development, or is employed under a written apprenticeship agreement and conditions that are found by the commissioner of labor and workforce development to conform substantially with those federal or state standards. (c) An exemption for student-learners applies when (1) the student-learner is enrolled in a course of study and training in a cooperative vocational training program under a recognized state or local educational authority or in a course of study in a substantially similar program conducted by a private school; and (2) the studentlearner is employed under a written agreement which provides that (A) the work of the student-learner in the occupations declared particularly hazardous will be incidental to the training; (B) the work will be intermittent and for short periods of time, and under the direct and close supervision of a qualified and experienced person; (C) safety

4 instructions will be given by the school and correlated by the employer with on-the-job training; and (D) a schedule of organized and progressive work processes to be performed on the job will have been prepared; and (3) each written agreement contains the name of the student-learner, and is signed by the employer and the school coordinator or principal. (d) Copies of each agreement covered by (c) of this section must be kept on file by both the school and the employer. This exemption for the employment of student-learners will, in the department's discretion, be revoked in any individual case if it is found that reasonable precautions have not been observed for the safety of minors employed under the agreement. A high school graduate who has completed training as provided in (c) of this section as a student-learner, may be employed in that occupation in which the student-learner training was completed, even though the graduate is not yet 18 years of age. (e) The state, political subdivisions of the state, and employers who only employ minors enrolled in work-training apprenticeship, vocational education, and other programs approved by the commissioner are exempt from the requirements of AS (f) Minors who have been emancipated for general purposes under AS are exempt from the requirements of AS (g) The wage prescribed for minors who work less than 30 hours in a workweek may not be less than the prevailing federal minimum wage. This provision, however, is not applicable to those exemptions otherwise provided for in AS (1) (10) Child Labor; Certificates of age. Every person employing a minor shall obtain and have on file proof of the minor's age acceptable to the commissioner. Examples of acceptable proof of age include, but are not limited to, a copy of (1) birth certificate; (2) Bureau of Indian Affairs census record; (3) passport; (4) driver's license; (5) authenticated school records; (6) federal age certificate; (7) baptismal certificate; (8) military dependent identification; (9) family court records; (10) affidavit of physician Rules Governing Practice and Procedure Before the State Commission for Human Rights. Reports and Recordkeeping. Employer Records. (a) An employer subject to AS shall make, and keep for two years, records of the race, age, and sex of its applicants for employment and its employees. (b) An employer who is being investigated under AS shall retain, until final disposition of the complaint, all records relevant to the determination of the complaint. These records include (1) application forms, including records of the race, age, and sex of applicants; (2) position descriptions; (3) classification studies; (4) payroll data; (5) personnel files, including employment application forms and other records pertaining to hiring, promotion, demotion, transfer, layoff or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship; (6) any other records relevant to the employment status of employees and applicants which the employer makes in the ordinary course of business. (c) An employer may request of applicants or employees the information listed in (a) of this section if the information is obtained to further a good-faith affirmative action plan designed to avoid or overcome conspicuous imbalance in a work force STATE COMMISSION FOR HUMAN RIGHTS; DISCRIMINATORY PRACTICES PROHIBITED; (b) The state, employers, labor organizations, and employment agencies shall maintain records on age, sex, and race that are required to administer the civil rights laws and regulations. These records are confidential and available only to federal and state personnel legally charged with administering civil rights laws and regulations. However, statistical information compiled from records on age, sex, and race shall be made available to the general public.

5 EMPLOYMENT PRACTICES AND WORKING CONDITIONS; WAGES; Employer to keep records. (a) An employer shall keep for a period of at least three years at the place where an employee is employed a record of the name, address, and occupation of each employee, the rate of pay and the amount paid each pay period to each employee, the hours worked each day and each workweek by each employee, and other payroll information that the commissioner may require. (b) The commissioner or an authorized representative of the commissioner may copy the employer's records at any reasonable time. An employer shall furnish to the commissioner or the representative on demand a sworn statement of the employer's records, and the commissioner may require that the sworn statement be made upon forms the commissioner has prescribed or approved. Arizona HOSPITALS AND NURSING FACILITIES; OVERTIME LIMITATIONS FOR NURSES. Report requirements. (a) A health care facility shall file with the division of labor standards and safety, Department of Labor and Workforce Development, a semiannual report on a form provided by the department. The report for the six-month period ending June 30 must be filed before the following August 1, and the report for the six-month period ending December 31 must be filed before the following February 1. The report must include, for each nurse employed by the health care facility or under contract with the health care facility, the number of overtime hours worked and the number of hours the nurse was on call. A health care facility that does not employ a nurse who worked overtime hours or who was on call during the reporting period is not required to describe hours worked as overtime and on-call hours for individual nurses but may instead complete the report by stating on the form that there are no reportable hours. (b) A primary care outpatient facility is not subject to the reporting requirements of (a) of this section. R Personnel Records Access to--.purpose. An employee's official personnel file is the official record and documentation of the employee's employment. B. Content. An agency head shall, for each agency employee, maintain an official personnel file that contains: 1. A copy of the job application or resumé for the employee's current regular position; 2. A copy of all performance appraisal reports completed as required by R ; 3. Personnel action forms that authorize changes in employment status, position, classification, pay, or leave status; 4. Letters of commendation as established by agency policy; 5. Correspondence concerning: a. Disciplinary actions as described in Article 8 and letters of reprimand; b. Acknowledgments of receipt of letters of reprimand or other disciplinary communications; and c. Employee objections or responses to correspondence described in subsection (B)(5)(a) that are not filed as grievances under Article 7, if the objection or response is received within 30 calendar days of the date of the disciplinary action or letter of reprimand; and 6. Corrective action plans and performance planning documents. C. Insurance and medical records. An agency head may maintain group insurance enrollment forms in an employee's official personnel file. An agency head shall maintain medical records in a separate file that is not part of the employee's official personnel file. D. Immigration records. An agency head shall retain I-9 forms and other documents required by law to prove employment eligibility in a separate file that is not part of the employee's official personnel file. E. Access. For the purpose of this subsection, an official is an individual who provides identification verifying that the individual is exercising powers and duties on behalf of the chief administrative head of a public body. An agency head shall limit access to an employee's official personnel file to: 1. The employee or an individual who has written authorization from the employee to review the personnel file; 2. Agency personnel designated by the agency head as having a need for the information; 3. A Department official in the normal line of duty; 4. An official acting in response to a court order or subpoena; 5. An official of an agency to which the employee has applied; and 6. An official of an agency of the federal government, state government, or political

6 subdivision, if the agency head of the employing agency deems access to the file to be appropriate. F. Disclosure of information. 1. Definitions. For the purposes of this subsection: a. "Disciplinary actions" means correspondence concerning disciplinary actions as described in Article 8, and letters of reprimand. b. "Records that are reasonably necessary or appropriate to maintain an accurate knowledge of the employee's disciplinary actions" means an official notice of charges of misconduct, the final disciplinary letter, and any responses related to grievances or appeals upholding, amending, or overturning the discipline. c. "Employee responses" means any written documents, submitted and signed by the employee, either: i. In response to an official notice of charges of misconduct; ii. As a formal complaint filed under the provisions of Article 7 of these rules to grieve a specific disciplinary action; or iii. As an objection to a specific disciplinary action and contained in the employee's official personnel file under subsection (B)(5). 2. The Director, or designee, shall ensure that except as provided in subsection (E), only the following information about an employee is provided to any person making a public records request under A.R.S. Title 39, Chapter 1, Article 2. a. Name of employee; b. Date of employment; c. Current and previous class titles and dates of appointment to the class; d. Name and location of current and previous agencies to which the employee has been assigned; e. Current and previous salaries and dates of each change; f. Name of employee's current or last known supervisor; and Records that are reasonably necessary or appropriate to maintain an accurate knowledge of the employee's disciplinary actions, including the employee responses to all disciplinary actions, unless providing this information is contrary to law. G. Employee access to files. An employee has the right to access only the employee's official personnel file. H. Control. 1. When an employee moves from one state service agency to another, the losing agency shall forward the employee's official personnel file to the gaining agency within 10 days of the effective date of the move. 2. When a former employee returns to state service to an agency other than the agency in which the employee was last employed, the gaining agency shall request that the last agency forward the employee's official personnel file. The last agency shall forward the file within 10 days of the receipt of the request. Sec. R Fair Employment Practices: Recordkeeping requirements; Division reports. Every employer, employment agency, labor organization, or joint labor management committee controlling apprenticeship or other training or retraining including on the job training programs, subject to this Act shall make and keep such records relevant to the determination of whether unlawful employment practices have been or are being committed, preserve such records for such periods, and make such reports therefrom, as the Division deems reasonable, necessary or appropriate for the enforcement of this Act; provided, however, that no employer, employment agency, labor organization, or joint labor management committee controlling apprenticeship or other training or retraining including on the job training programs required to file an EEO-1, 2, 3, or 4 Report with the Equal Employment Opportunity Commission shall be required to file a similar report with the Division unless specifically requested to do so by the Division CIVIL RIGHTS; Recordkeeping; preservation of records; reports to division; furnishing information to other governmental agencies; information confidential; classification A. Every employer, employment agency and labor organization subject to article 4 of this chapter shall make and keep such records relevant to the determination of whether unlawful employment practices have been or are being committed, preserve such records for such periods and make such reports therefrom as the division shall prescribe by regulation or order, after public hearing, as reasonable, necessary or appropriate for the enforcement of this article and article 4. Compliance with reporting and recordkeeping regulations issued by the United States equal employment opportunity commission shall be compliance with this subsection.

7 Any employer, employment agency, labor organization or joint labor-management committee which believes that the application to it of any regulation or order issued under this section would result in undue hardship may apply to the division for an exemption. If an application for such exemption is denied, a civil action may be brought in the superior court for the county where such records are kept. If the division of the court, as the case may be, finds that the application of the regulation or order to the employer, employment agency or labor organization in question, or in general, would impose an undue hardship, the division or the court, as the case may be, may grant appropriate relief. If any person required to comply with the provisions of this subsection fails or refuses to do so, the superior court for the county in which such person is found, resides or transacts business shall upon application of the division issue to such person an order requiring him to comply. B. In prescribing requirements pursuant to subsection A, the division shall consult with other interested governmental agencies and shall coordinate its requirements with those adopted by such agencies. Upon request the division may furnish to any such governmental agency charged with the administration of a fair employment practices law information obtained pursuant to subsection A from any employer, employment agency, labor organization or joint labor-management committee subject to the jurisdiction of such agency. Such information shall be furnished on condition that it not be made public by the recipient agency prior to the institution of a proceeding under applicable law involving such information. If this condition is violated by a recipient agency, the division may decline to honor subsequent requests of such agency. C. It is unlawful for any officer or employee of the division or the board to make public in any manner whatever any information obtained by the division pursuant to its authority under this section prior to the institution of any proceeding involving such information under this article. Any officer, employee or agent of the division or the board who shall make public in any manner whatever any information in violation of this subsection is guilty of a class 1 misdemeanor Minimum Wage-Records kept by employer. (a) Every employer subject to any provision of this subchapter or of any regulation issued under this subchapter shall make and keep for a period of not less than three (3) years in or about the premises wherein any employee is employed a record of the name, address, and occupation of each of his or her employees, the rate of pay, the amount paid each pay period to each employee, and such other information as the Director of the Department of Labor shall prescribe by regulation as necessary or appropriate for the enforcement of the provisions of this subchapter or of the regulations under this subchapter. (b) The records shall be open for inspection or transcription by the director or his or her authorized representative at any reasonable time. (c) Every employer shall furnish to the director or to his or her authorized representative on demand a sworn statement of the records and information upon forms prescribed or approved by the director. [Editor s note: Arizona recordkeeping provisions apply to public employers only] Arkansas (a)(1)(a) Access to Personnel Files. Except as otherwise specifically provided by this section or by laws specifically enacted to provide otherwise, all public records shall be open to inspection and copying by any citizen of the State of Arkansas during the regular business hours of the custodian of the records. (B)(i) However, access to inspect and copy public records of the Department of Correction and the Department of Community Correction shall be denied to: (a) A person who at the time of the request has pleaded guilty to or been found guilty of a felony and is incarcerated in a correctional facility; and (b) The representative of a person under subdivision (a)(1)(b)(i)(a) of this section unless the representative is the person's attorney who is requesting information that is subject to disclosure under this section. (ii) Access to inspect and copy public records of the Department of Correction and the

8 Department of Community Correction shall be denied to a person under subdivision (a)(1)(b)(i)(a) of this section regardless of whether the records are in the possession of the Department of Correction, the Department of Community Correction, or another agency of the state. (2)(A) A citizen may make a request to the custodian to inspect, copy, or receive copies of public records. (B) The request may be made in person, by telephone, by mail, by facsimile transmission, by electronic mail, or by other electronic means provided by the custodian. (C) The request shall be sufficiently specific to enable the custodian to locate the records with reasonable effort. (3) If the person to whom the request is directed is not the custodian of the records, the person shall so notify the requester and identify the custodian, if known to or readily ascertainable by the person. (b) It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter: (1) State income tax records; (2) Medical records, adoption records, and education records as defined in the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g, unless their disclosure is consistent with the provisions of that act; (3) The site files and records maintained by the Arkansas Historic Preservation Program of the Department of Arkansas Heritage and the Arkansas Archeological Survey; (4) Grand jury minutes; (5) Unpublished drafts of judicial or quasi-judicial opinions and decisions; (6) Undisclosed investigations by law enforcement agencies of suspected criminal activity; (7) Unpublished memoranda, working papers, and correspondence of the Governor, members of the General Assembly, Supreme Court Justices, Court of Appeals Judges, and the Attorney General; (8) Documents that are protected from disclosure by order or rule of court; (9)(A) Files that if disclosed would give advantage to competitors or bidders and records maintained by the Arkansas Economic Development Commission related to any business entity's planning, site location, expansion, operations, or product development and marketing, unless approval for release of those records is granted by the business entity. (B) However, this exemption shall not be applicable to any records of expenditures or grants made or administered by the commission and otherwise disclosable under the provisions of this chapter; (10)(A) The identities of law enforcement officers currently working undercover with their agencies and identified in the Arkansas Minimum Standards Office as undercover officers. (B) Records of the number of undercover officers and agency lists are not exempt from this chapter; (11) Records containing measures, procedures, instructions, or related data used to cause a computer or a computer system or network, including telecommunication networks or applications thereon, to perform security functions, including, but not limited to, passwords, personal identification numbers, transaction authorization mechanisms, and other means of preventing access to computers, computer systems or networks, or any data residing therein; (12) Personnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy; (13) Home addresses of nonelected state employees, nonelected municipal employees, and nonelected county employees contained in employer records, except that the custodian of the records shall verify an employee's city or county of residence or address on record upon request; (14) Materials, information, examinations, and answers to examinations utilized by boards and commissions for purposes of testing applicants for licensure by state boards or commissions; (15) Military service discharge records or DD Form 214, the Certificate of Release or Discharge from Active Duty of the United States Department of Defense, filed with the county recorder as provided under , for veterans discharged from service less than seventy (70) years from the current date; and (16)(A) Records, including analyses, investigations, studies, reports, recommendations, requests for proposals, drawings, diagrams, blueprints, and plans, containing information relating to security for any public water system. (B) The records shall include: (i) Risk and vulnerability assessments; (ii) Plans and proposals for preventing and mitigating security risks; (iii) Emergency response and recovery records; (iv) Security plans and procedures; and (v) Any other records containing