06/ 22/ 2004
by Charles R. McConnell
The majority of people who manage the work of others retain information about employees in their files. We’re concerned here with personal files; not personnel files which include the official employment records, but rather those files that a manager may use for retaining information about individual employees. These personal files often hold copies of information contained in the official personnel files, for example, performance evaluations and disciplinary actions. The manager need not duplicate what’s found in the official files, but it’s often done simply to have the information at hand to refer to rather than having to go to the central location where the official files are kept.
But in addition to copies retained for convenience, a manager’s files might also include less formal documentation that doesn’t get placed in the personnel file. This documentation ordinarily consists of notes relating to informal counseling sessions, discussions of problems, and in general anecdotal notes concerning employee behavior and various incidents involving employees. Few managers conduct business without generating notes of various kinds, whether simple notations on calendars, information jotted down during meetings or the aforementioned notes about employees. It’s this informal documentation that can present problems, because when push comes to shove your “personal” files are not private at all.
It’s common to think that your own files are your property. You feel you have good reason to consider whatever anecdotal notes you write concerning employees as private; you create them, you use them or don’t use them as the case dictates, you either keep or discard them at will, and no one but you can ever see them because they’re your personal property and are thus private. Correct?
Incorrect. The fact of the matter is that under certain circumstances what you’ve written into your personal files can become public information whether you approve or not. And if the anecdotal notes you’ve retained have not been very carefully written, each such employee file in your desk holds serious potential hazards.
Many managers are unaware that such files can be demanded and accessed during certain legal proceedings and used against both the manager and the company. Granted it may be extremely rare for one’s personal files to come under legal scrutiny, but even once is too often as some manager’s have discovered to their chagrin.
We’re all generally aware that lawsuits brought by current and former employees have been increasing in number for several years, and the end is not yet in sight. When an employment-related legal action becomes real, plaintiffs’ attorneys begin digging for any and all information they believe might help their case. One source of information, often identified as “manager’s files,” are those unofficial “personal” files that managers maintain. The plaintiffs’ attorneys or the plaintiffs themselves need not even know for a fact that such files exist; they need only claim that “on information and belief” it’s felt these files exist.
The vehicle used for demanding such files and other documentation is a legal instrument known as the Notice to Produce. When one of these instruments is served on the company, the company’s officers and managers are legally required to provide copies of everything asked for in the Notice. Everything turned over to the plaintiffs’ attorneys can then be used in the legal action, and all of it must then be considered public information.
Keeping one’s personal files lean by cleaning them out periodically is recommended. It’s best not to let anecdotal notes accumulate once they’ve outlived their immediate usefulness. However, no one should ever wait until a Notice to Produce has arrived before thinking of slimming down the files by destroying some documents; it is a violation of Federal law to destroy requested documentation after a Notice has arrived.
The manager’s appropriate course of action concerning anecdotal note files is twofold: Keep personal files down to necessities by regularly cleaning them out, and -- most important -- never put anything in informal documentation that can’t be factually verified in an employee’s official record. That is, avoid name-calling and demeaning or defamatory comments or other subjective commentary, and stick to verifiable facts.
It helps to always remember that although you may think that personal files will never be seen by others, there's always that risk. So never include anything that could embarrass you or the company by going public or showing up in court testimony.
