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Questions - and answers.

What information should employers maintain in employee personnel files? Do employees have a right to review their personnel files?

As a rule of thumb, any information pertaining to employment decisions surrounding employees belongs in a personnel file. Job applications, performance reviews, written warnings, and awards are the most obvious documents in this regard. However, oral or written customer or coworker complaints also should be documented and included. Conversely, medical records should never be maintained in personnel files, as the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA) specifically mandate that such information be maintained separately. Employment Eligibility Verification forms (I-9 forms), which demonstrate that an individual is legally entitled to work in the United States, should also be maintained outside personnel files.

In order to avoid an invasion of privacy claim, employers must restrict access to personnel files. Confidential information is maintained in personnel files and should not be shared with persons who do not have a legitimate right to review the information. For example, one employee should never be permitted to review the personnel file of another. Accordingly, specific company officials should be designated, and only those individuals should have the authority to review the files. Those officials would logically include the employee's supervisor and the head of human resources.

In this regard, if a former employee's personnel file is requested from another employer or a creditor for purposes of litigation, the information in the file should be released only in response to a subpoena or the former employee's written consent.

Moreover, many state statutes explicitly require employers to allow employees access to their own personnel files. Employers should learn their state's requirements surrounding this issue. Generally, however, the statutes define what type of information must be contained in the file and circumstances under which an employee may review or copy his or her files.

Although employees generally have a right to review their files, the manner in which the employer conducts this process is critical. Employees should be given access to their files only under some type of supervision (e.g., with a human resources manager present). Although such measures may seem extreme, this will prevent an employee from attempting to tamper with, remove, or destroy documents contained in the file. Alternatively, an employer could merely maintain the original and provide a copy of the file for the employee to review.

An employee may also want the opportunity to rebut information in the file after reviewing it. Such a request should be granted and may in fact facilitate communication between the company and the employee about work-related issues or problems.

As a practical matter, an employer should have a custodian of records who oversees employee personnel files. The custodian should ensure that all employees' personnel files contain complete, current, and relevant information. At the same time, the custodian should properly remove any information that does not belong in the file (e.g., medical records). The same individual could monitor employees while they are reviewing their files and oversee that files requested by third parties (creditors or other employers) do not contain medical records and are produced only pursuant to a subpoena or written authorization.

In sum, although most employers currently maintain employee personnel files, employers must be aware of and comply with laws that govern what type of information should be preserved in the files and who has a right to review the files. Fortunately, by taking certain practical steps, an employer may significantly reduce the likelihood of litigation and liability surrounding this issue.

May employers use surveillance cameras to monitor employees in the workplace?

Employers may use surveillance cameras to monitor the workplace in areas where employees have no reasonable expectation of privacy.

Due in part to recent advances in technology, an increasing number of employers are using video cameras to monitor employees in the workplace. Today, video surveillance is used by employers for detecting employee misconduct (particularly theft), monitoring job performance and efficiency, and assuring conformance with safety procedures.

No federal laws govern private employers' use of surveillance cameras in the workplace. However, many states recognize the common-law tort of invasion of privacy, which provides that surveillance cameras may not be used in areas where an employee or visitor has a reasonable expectation of privacy. In addition, some states have enacted statutes that specifically prohibit the use of surveillance cameras in certain areas such as dressing rooms or employee lounges.

The most common cause of action challenging an employer's use of video surveillance is a tort claim for invasion of privacy. The core analysis in determining whether there has been an unlawful invasion of privacy on the part of the employer hinges on whether the employee has a "reasonable expectation of privacy" in the area being surveilled.

As a general rule, surveillance cameras are most likely permitted in areas where the employees do not have a reasonable expectation of privacy, such as by cash registers in a store, at assembly lines, open offices, hallways, and common areas. For example, a Maryland district court recently held that an employee did not have a reasonable expectation of privacy in an open office that was a common area accessible to all employees. Therefore, the employer's video camera, which recorded an employee picking the lock on another employee's desk in that office, was lawful (Marrs v. Marriott Corp., 830 F. Supp. 274, 283 (D. Md. 1992)).

Even if the area is an open one, employers may wish to inform employees of the camera or to make the cameras visible to the employees. These conditions would eliminate any expectation of privacy that employees would otherwise have and, in addition, may halt or prevent workplace misconduct if employees know they are being surveilled.

Is an employer liable for the sexual misconduct of its employee on the basis of negligent hiring?

Employers have increasingly been sued for the negligent hiring and/or retention of employees who engage in criminal, violent, or other wrongful acts. The general principle of a negligent hiring or retention claim is that an employer has breached its duty to protect its employees from other employees whom the employer knows or has reason to know, pose a risk of harm. This type of claim is typically asserted by employees injured as a result of workplace violence. Recently, however, employees who have been subjected to sexual harassment by supervisors with a past record of sexual harassment have asserted such claims.

One court that recently addressed this issue ruled that the employer was not liable for a supervisor's sexual harassment although the supervisor had propensities toward sexually abusive behavior which would have been revealed through a preemployment investigation. In Geise v. Phoenix Co., 639 N.E.2d 1273, 159 Ill. 2d 507 (1994), the Illinois Supreme Court reversed a lower court's decision holding the employer liable for a manager who sexually harassed an employee because the manager had been dismissed from a previous employer for sexual discrimination and harassment.

The employee argued that Phoenix Company was liable for hiring her manager to work in a position that required him to interact with and have authority over women. Essentially, the plaintiff argued that the company breached its duty to protect her from injury caused by sexual harassment from the manager whom Phoenix Company should have known posed a risk of such harm.

Illinois's highest court ruled that the employer was not liable for failing to adequately check the manager's references or interviewing the manager about his work history. In doing so, the court dismissed the employee's claims for negligent hiring and retention but did not disturb the lower court's ultimate conclusion that, under certain circumstances, an employer could be liable for hiring and retaining an employee with a work history marred with incidents of sexual harassment.

The court held that Phoenix Company was not liable for negligent hiring or retention because the state statute under which plaintiff sued prohibited the plaintiff from also suing for negligent hiring and retention. Accordingly, the court concluded that, in this case, the plaintiff's claims of negligent hiring and retention were legally inappropriate and were simply a feeble attempt to extend further liability to the employer. Other courts, however, have imposed liability on employers for hiring employees with a propensity toward sexually abusive behavior.

Although no basis exists for finding an employer absolutely responsible for the creation of a sexually hostile environment created by a supervisory employee, employers should take steps to ensure that their preemployment practices and internal complaint procedures insulate them from liability for the unauthorized misconduct of their employees. Most important among these measures is to conduct a prompt and reasonable investigation of all complaints of sexual harassment and to conduct an adequate background and reference check on applicants.

Harry N. Turk is a partner in the law firm of Epstein, Becker & Green, P.C., in New York City. The author acknowledges the assistance of Tara M. McCreery, an associate at Epstein, Becker & Green.
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Title Annotation:personnel management issues
Author:Turk, Harry N.
Publication:Employment Relations Today
Date:Mar 22, 1996
Previous Article:An employee can serve two masters: the Supreme Court rules on 'salting.'

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