Reprinted from the April 15, 2006 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

Keeping Personal (Not Personnel) Files

Remembering the particulars of employees’ performance between performance appraisals can prove challenging. Instead of relying on memory, jotting down notes about employees’ work, attitude, behavior, etc., can prove invaluable for jogging your memory. However, since these notes don’t go into employees’ formal personnel files, and therefore aren’t accessible to them, they can also raise employees’ suspicions.

MAKING IT PERSONAL

“You must be mistaken,” asserted Aabish Aktas. “There’s nothing wrong with my performance.”

“How can you say that when three customers recently complained about you?” challenged supervisor Lauren Kindill. “Not only that, but I just showed you how you incorrectly catalogued the new inventory.”

“I should be the one complaining about those customers. As for the inventory, my way makes more sense.”

Aktas refused to acknowledge or address any deficiencies in her performance. Kindill noted the issues, as well as Aktas’s attitude. Instead of slipping the note into the employee’s personnel file, however, Kindill placed it in an employee file she maintained exclusively for herself.

HARBORING INFORMAL FILES

Aktas landed back in Kindill’s office a few months later.

“You said that you had an emergency, but the last time I checked, attending a wedding wasn’t an emergency,” stated Kindill.

“Well, I asked for the day off, but you wouldn’t give it to me.”

“I explained that I denied the request because another employee with more seniority had already requested that day, as well. You’ve left me with no choice except to recommend a one-day suspension for insubordination.”

The department manager didn’t carry through on the suspension, so it didn’t go into Aktas’s personnel file. But Kindill made sure to note her recommendation in her personal file.

Kindill continued making personal notations on Aktas’s performance and attitude. The final straw came when Aktas lost inventory she was responsible for delivering. After she was fired, the employee charged the company with discrimination. She argued that the private notes Kindill kept on her showed that the manager scrutinized her more closely than she did other staff members.

An appellate court dismissed her case. In rendering its decision, the court held that the practice of keeping personal files that contain records of negative or critical comments regarding employees is appropriate and relevant in an employment discrimination case. Ruling: It is entirely reasonable and not unusual or discriminatory for an employer to maintain personal files on employees.

What’s important to note about this ruling is that while there is nothing wrong with, or illegal about, keeping personal notes on employees, these notes could play a part in a discrimination charge. So be prepared to have your personal files examined by third parties. Luckily for this company, Kindill’s notes on Aktas focused on legitimate job concerns, and not the employee’s personal or protected characteristics.

ACTION TIPS

Take notes on these do’s and don’ts of maintaining personal files.

• Don’t think of the file as a secret record. Never include anything that you wouldn’t be comfortable with the employee or a judge and jury seeing.

• Do use the notes appropriately. Incorporate the information into performance appraisals or formal disciplinary warnings.

• Don’t hang onto personal notes after they are used in other documents, to avoid the accidental disclosure of personal information. Exception: If a discrimination complaint has been filed, destroying notes about the employee will look suspicious. Hold onto them until the matter is fully resolved (internally and in court).

• Do make sure personal notes are job-related. Much like documents that go into actual personnel files, record only objective and accurate information. If it sounds like a personal attack on the employee, toss the note immediately. Do not keep a personal note written in the heat of the moment that documents your emotions, rather than the facts.

• Don’t use personal notes as the sole basis for disciplinary action. Unless, of course, the employee is apprised of the information contained in the informal file and given an opportunity to refute that information.

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