P files and investigation files

Elizabetharess

We recently termed an employee. When the employee left she stated that we would hear from her employee. The employee was terminated because another employee came forward about the termed employee. We conducted employee interviews with general questions about the facility and asked for their input about morale.
I never put the interviews with various employees into anyone's P file. I always have a separate secured filing for this sort of "investigative" documents. In this case it was the facility in general that was looked into.
My question is this...If the termed employee does get an attorney and the atty. asks for her P file am I also required to give the separate file? I would assume not unless there was a legal order requiring I submit all paper work.
What is the general consensus out there reading this and can you share a past experience?
Thanks
ERS

System

The laws regarding this issue vary from state to state, and many states do not allow employers to keep a "secret file" or "supervisor's file" from employee inspection. I recommend you take a look at Wis. Stat. 103.13, the Wisconsin law regarding personnel files. It states, in part, that an employer must, "upon the request of an employee, which the employer may require the employee to make in writing, permit the employee to inspect any personnel documents which are used or which have been used in determining that employee's qualifications for employment, promotion, transfer, additional compensation, termination or other disciplinary action, and medical records, except as provided in subs. (5) and (6)." So generally you must allow inspection (and copying, per subsection 7) of *all* documents used in making decisions concerning an employee's employment, unless the documents fall under one of the exceptions in subsection 6 (subsection 5 also sets forth additional provisions with respect to the release of medical records).

Subsection 6 states as follows:

(6) Exceptions. The right of the employee or the employee's designated representative under sub. (3) to inspect his or her personnel records does not apply to:

(a) Records relating to the investigation of possible criminal offenses committed by that employee.

(b) Letters of reference for that employee.

(c) Any portion of a test document, except that the employee may see a cumulative total test score for either a section of the test document or for the entire test document.

(d) Materials used by the employer for staff management planning, including judgments or recommendations concerning future salary increases and other wage treatments, management bonus plans, promotions and job assignments or other comments or ratings used for the employer's planning purposes.

(e) Information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of the other person's privacy.

(f) An employer who does not maintain any personnel records.

(g) Records relevant to any other pending claim between the employer and the employee which may be discovered in a judicial proceeding.


Hope this helps.

Elizabetharess

Boy does this help. Thank you very much.
Does this includes notes taken while interviewing or can I type up summaries and that is good enough?

HRinGA

The last few requests I've received from attorneys includes language to the effect of: "personnel file, memos pertaining to employee, etc." Basically anything I have that has the employee's name on it. That would include any separate files I have, and I do have several.

System

And now, there are new regs that require the employer to preserve electronic files, including email communications. These new regs also require the employer to furnish the requested e-documents upon discovery proceedings associated with lawsuits against the employer. The thought of some plaintiffs attorney culling through email transmissions, or expecting the employer to go through such files (that literally number in the hundreds of thousands,if not millions) is frightening. The logistics of this are incredibly cumbersome and costly. We will soon have to record all phone calls, turn over cell phone charges, record every meeting held with our employees and generally make available every aspect of communication to palintifs atorneys who will then use the data against the employer in some ludicrous and frivilous lawsuit. When will there be some recognition from the courts that they can't continue to burden the employer with these unfair requirements that do nothing but encourage and promote costly litigation?

Elizabetharess

I know what you mean but I have seen an employer deliberately have an employees emails destroyed because of the way the termination was handled. I don't think that that is the majority but I do know of one such business.
It is difficult to travel in and out of the rulings and then you have the state issues and here in Wisconsin the term "At Will" is a joke because of all the employee rights. It is good to see on the one hand, coming from TX where so few rights are given to the ee.
Well, anyway thanks for the input.