Recordkeeping Questions of the Week
How Long Should We Keep Resumes and Applications?
HR Question:
We’ve received a lot of resumes recently – some have been for positions we’ve posted, and some are unsolicited. Do we have to keep all of these resumes, and if so, how long do we need to keep the resumes and applications?
HR Answer:
First, let’s address what to do with unsolicited resumes. You are not obligated to store unsolicited resumes; however, it is important to be consistent with your approach. If there are any unsolicited resumes that you have kept for further consideration, your best approach is to keep all unsolicited resumes for the same duration of time that you retain your solicited resumes.
For resumes and applications that you have received in relation to a job opening, there are a few federal laws that require employers to retain employment applications and related documents ranging for a period of one to two years from the date of the hiring decision (the date the position was filled, not posted). Employers are responsible for following the federal laws under which they are covered as well as any contractual requirements that they may have (i.e., union contracts) that may require additional time to maintain records.
Another important item to note regarding applicant recordkeeping is that you are required to maintain not only employment applications for a position, but the entire hiring record. Hiring records could include such things as applications, resumes, screening tools and assessments, background checks, and reference checks. Anything that you use in assisting you with an employment decision is considered part of your hiring records.
Major federal laws that address employment records retention requirements include:
- Title VII of the Civil Rights Act of 1964 – Requires employers to keep various employment records, including job applications, for one year from the date the application was received.
- Age Discrimination in Employment Act – Requires employers to retain employment applications for one year. There is language, however, that indicates if you are aware the applicant is over age 40, you should retain it for as long as two years.
- Americans with Disabilities Act – Requires employers to retain job applications and documents for one year. There is some variation based upon whether or not the applications are solicited or unsolicited, but the maximum retention is two years.
- Executive Order 11246 – If you are a government contractor and have less than 150 employees or a contract of at least $150,000 you must retain these records for one year. If you have at least 150 employees or more and a contract of $150,000, you are required to keep the records for two years. If you have a resume on hand from a previous search and decide to consider it for a new position months down the road, you will need to keep that resume or application for the time required based on the last viewing of the document (i.e., 1-2 years past the fill date of the second position).
A word of caution – if there is a discrimination charge or unlawful employment practice brought against the employer, employment applications must be retained until the matter reaches a resolution. This can get tricky if someone claims discrimination because they did not get a promotion; the employer is then required to keep all the applications received for that promotion until the claim is resolved. With a lengthy lawsuit and litigation, this could be an extended amount of time.
Generally speaking, good practice is to keep resumes and applications of non-hired individuals for two years following the date the hiring process is completed for a position (i.e., from the time the new employee starts working). Remember to consult state laws in addition to federal regulations when determining how long to keep employee records.
Recordkeeping can be a daunting task, especially when you are trying to clean out old records and maintain the pertinent ones to remain compliant. Clark Schaefer Strategic HR understands your frustration and has many tried-and-trusted tips on recordkeeping. Visit our HR Compliance & Recordkeeping Services to learn more about ways we can help you to get your employment records in order.
What Do I Have to Know Before Filing My EEO-1 Report?
HR Question:
What is an EEO-1 Report and how do I know if I am required to file one?
HR Answer:
As defined by the Equal Employment Opportunity Commission (EEOC), the EEO-1 Report is an annual mandatory data collection of demographic workforce data, such as race/ethnicity, gender, and job categories. The window for the 2022 data collection will open in mid-July 2023.
Am I Supposed to File an EEO-1 Report?
Great question to start with! Not every employer is required to file an EEO-1 report. That being said, there are a few questions to ask yourself to understand if you need to file:
- Do you have 100 or more employees?
- Are you a federal contractor?
- Are you a first-tier subcontractor with 50 or more employees and at least $50,000 in contracts?
If you answered “yes” to any of the above questions, then you need to file an EEO-1 report annually. Employers also must file if the organization is any of the following:
- Owned by or affiliated with another company and the entire enterprise has 100 or more employees.
- Serving as a depository of government funds for any amount.
- A financial institution that is an issuing and paying agent for US Savings Bonds and Notes.
There are some organizations that are exempt, such as State and local governments, public primary and secondary school systems, institutions of higher education, American Indian or Alaska Native tribes, and tax-exempt private membership clubs other than labor organizations.
What Should I Know Before I File?
It always pays to be prepared! Before you start gathering the data yourself, here are a few tips to help you be better prepared to file your EEO-1 Report.
First, research and understand the requirements for filing. While these requirements don’t change frequently, it’s best practice to double-check the most up-to-date requirements, which can be found on the EEOC‘s website. If you have additional questions, the Message Center provides an outlet to reach out to the EEOC for guidance. This page will open in mid-July as the window for 2022 data collection opens.
Gathering the data yourself can be difficult. While this may not be an immediate solution, investing in an HRIS or a payroll system can be a great resource. Some software includes an HR solution that provides an efficient and accurate way to access the employee data needed to complete the report accurately.
If you do not have an HRIS or payroll software solution, you can have each employee complete an EEO Self-Identification Form. This form is voluntary, however; if an employee declines to identify, the federal government requires you to determine this information by visual survey and/or other available information.
How Do I File?
If your company has never filed an EEO-1 Report before, let’s start with the basics – creating an online account. Visit the EEOC Data page, select “Create an Account,” then log in to the EEO-1 Component 1. At that point, new users can link their individual user account to a company record by selecting “Add Company to List” on the Your Company List page and entering your company’s EIN. After you register, you will receive your Company ID and PIN.
You will need the following information to complete the report:
- Company ID and PIN
- Company EIN and NAICS code
- Company DUNS Number (if the company is a federal contractor)
- Establishment address(es) – for a single-establishment, submit only one EEO-1 data report; for a multi-establishment company, submit a separate report for each location.
- A count of all full-time and part-time employees during the specified pay period you have selected (for 2022 reporting in 2023, you can select October, November, or December of 2022)
- Gender and race/ethnicity of all employees
- Job categories for all employees
- Employment data from one pay period in October, November, or December of 2022
Once the report is finished, it needs to be certified and submitted. Don’t forget to click the “certify report” button; otherwise, the EEOC will not receive your report.
Thank you to Sherri Hume, SHRM-CP, HR Business Advisor, for contributing to this edition of our HR Question of the Week.
Recordkeeping is one of the more mundane tasks associated with Human Resources, but it is extremely important and can get you into hot water (i.e., incurring fines) if not done properly. Keeping the right files easily accessible and up-to-date is vital. Need some help? Visit our HR Compliance & Recordkeeping page to learn more.
Why Is It Important To Get An Employee’s Signature?
Have you ever had an employee question an employment agreement or say they didn’t mean to agree to a term of their employment? Why is it so important to get an employee’s signature?
This is a critical question for all employers, and the answer applies to more than just employment agreements! At its root, a signature is used to show the intent of an individual to bind oneself to a contract or make a written representation.
Why is an Employee’s Signature Important?
In the case of a new hire’s employment agreement, the signature here binds both the employee-to-be and the company to the agreed-upon terms such as salary, benefits, schedule, etc. – all items you don’t want to have to argue over after the employee has already started.
There are other instances where having an employee’s signature can help to protect your organization beyond the employment agreement. For example, when memorializing a performance conversation, it may be important to have an employee make a written representation of the fact that they were there, they understand the conversation, and they’ve agreed to any future action discussed during the meeting.
Obtaining an employee’s signature on documents such as these not only helps to clarify expectations, but it can also be an important part of your organization’s risk mitigation.
Employee Signature Best Practices
These signed documents are used should the agreement, the conversation, or actions be called into question, whether that’s internally or in a court of law. To eliminate additional confusion, there are best practices when gathering employee signatures.
A signature in ink is recognized as the standard for executing documents. However, should in-person not be an option (as many organizations have experienced a significant increase in remote workers), other legally recognized methods of signing are effective. These may include a scanned PDF of a signed document with an original signature or obtaining an electronic signature using software that is legally recognized, such as DocuSign, Adobe, certain payroll services, etc.
All in all, it goes back to showing intent to sign should anyone ever question that an agreement was created.
What Doesn’t Count as a Signature?
What you want to avoid is a question of fraud or whether an individual intended to enter into the agreement. Just typing a name using script font instead of using an original signature is typically not sufficient because it is easier to claim that it was created by someone other than the named party.
Additionally, simply cutting and pasting a picture of a person’s original signature into a document, as is sometimes done on letters, isn’t recommended because it can be more easily used to create counterfeited documents (or alleged to be counterfeit by a party not wanting to be bound by the agreement). Having said that, it is slightly better than typing in script font.
In the end, it is important to protect both parties – the employee and the company – with original or well-documented signatures in the case of disagreements or audits. By taking a little bit of additional time upfront to ensure that you’ve gathered an employee’s signature correctly, you can prevent a significant amount of wasted time and money later down the path.
Special thank you to Emily Smith, JD, General Counsel for Clark Schaefer Hackett, and Sammie Kelly for contributing to this Emerging Issues in HR.
Although maintaining proper recordkeeping practices may not be everyone’s forte, it is a critical piece to help protect both your organization and your employees. But don’t worry, Clark Schaefer Strategic HR are here to help! We can conduct an HR Audit to review your HR policies, procedures, documentation, and systems to identify any areas for improvement or enhancement in your HR function. To learn more, visit our HR Audit page or Request an HR Audit Quote.
How Do I Write and Deliver a Written Warning?
HR Question:
I have an employee who is not following company policy. I have given them several verbal warnings, and I know my next step is a written warning. How do I write and deliver a written warning?
HR Answer:
Disciplining employees can be uncomfortable. That’s why most companies have a Progressive Disciplinary Policy, clearly stating the steps employees need to take to modify unacceptable behavior and achieve the expectations of their role within the company. This can take the burden of deciding the next steps or consequences off of the manager and help them maintain an unbiased disciplinary process.
In order for the Progressive Disciplinary Policy to work as designed, it’s important that managers and supervisors document incidents appropriately. By following this policy and documenting incidents accordingly, companies can make a case for discipline or termination. However, without the appropriate documentation, taking disciplinary action can be potentially risky.
How Do Progressive Disciplinary Policies Start?
Most Progressive Disciplinary Policies start with a verbal warning. It’s important to make sure the employee is aware of what policy they are not following, as sometimes it’s simply a case of not being aware. It’s the “human” part of “human resources” – sometimes, employees make honest mistakes when they aren’t aware that they’re not in compliance. A verbal warning here can do the trick. However, sometimes it takes more than a verbal warning. That is when a written warning comes into play.
What’s Next? A Written Warning.
A written warning is a more formal step in the disciplinary process. A written warning should include:
- Employee Name
- Position
- Expectations
- Details of failed expectations
- Consequences of failing to improve
- Employee comment section
- Manager signature/date
- Employee acknowledgment
It’s important to include factual information should the process or the disciplinary action ever be called into question. Additionally, any emotion or opinions should be kept out of the written warning and subsequent documentation.
The Do’s and Don’ts of Writing a Warning
Susan Heathfield, a writer for Balanced Careers, shares the following excellent examples of the right and wrong ways to document an attendance issue in The Importance of Documentation in Human Resources:
Wrong:
“Mark is usually late for work. Mark misses too much work.”
In this example, the documentation lacks specific examples, dates, and times, and includes the supervisor’s opinion, making a poor case against the employee and a strong case for discrimination or targeting by the supervisor.
Right:
“April 1: Mark called in sick and missed eight hours of work.”
“April 4: Mark arrived at work at 10 a.m., two hours late from his scheduled start time.”
“April 6: Mark scheduled a doctor’s appointment and then, stayed home to have a new furnace installed.”
“April 12: Mark called in sick and missed eight hours of work.”
See how the documentation relies on dates, times, and the amount of work missed? It also details the specific reasons the employee was missing work, rather than letting those facts be forgotten or muddled when recalled later.
Best Practices for Written Warnings
Like most processes in business, there are best practices when it comes to delivering written warnings. First, it’s important to be consistent and timely. Avoid waiting days or weeks to write up an employee for an issue, as the impact of the warning (as well as the clarity of each person’s memory) can fade with time. Additionally, if you write up one employee for an attendance issue, be prepared to write up others who have the same issue. This consistency can help prevent claims of discrimination or favoritism.
At the end of the day, it’s important to provide feedback to your team members to help them succeed. If the employee has improved, be sure to acknowledge their effort. If the employee has not improved in the time allowed, continue to follow your Progressive Disciplinary Policy.
Special thanks to Sherri Hume, SHRM-CP and Samantha Kelly for contributing to this HR Question of the Week.
Employment recordkeeping does not rank high on the list of favorite human resources responsibilities, but it can get you into hot water if not done properly. Keeping appropriate disciplinary documentation is vital to proving your processes are compliant. Avoid the fines and minimize your stress level by having Strategic HR assist with your recordkeeping compliance. Visit our HR Compliance and Recordkeeping page to learn more about our services.
An Employee Died Suddenly But Had Not Updated Their Beneficiary
Question:
We recently have had a long time employee with the company die suddenly. I have never had to handle death benefits before and learned that this employee did not update his beneficiary after his divorce and remarriage. His ex-wife is still listed as the beneficiary. His current wife is highly upset with me because of this. Is there something I can do to let our life insurance carrier know he was divorced and remarried so his current wife can get the benefit? Did I fail in my duties somehow by not having this updated?
Answer:
Assuming that this was against the deceased employee’s wishes, it is quite an unfortunate situation. As the employer, there is nothing you can do about a beneficiary form that has not been updated. Beneficiary forms are the responsibility of the employee and if an employee fails to complete one, update one, or completes it incorrectly, that is their responsibility, not yours. Some employees balk at making the change, indicating their will is up to date; however, employees should not assume that state law will revoke early beneficiary designations for company plans and allow a will to prevail. This is because in the instances of company health and welfare plans, the plans are governed by ERISA. The Employee Retirement Income Security Act dictates that the plan administrator of these plans must turn over the funds to the beneficiary listed on the forms, no matter if they were remarried or what is listed in the employee’s will. Many such instances have ended up in court but honestly, there is nothing the employer can do in these situations.
The Department of Labor issued a document for employers on best practices surrounding beneficiary designations in ERISA sponsored plans. Although the document is dated (2012), it still contains some best practices on maintaining beneficiary information. This may be helpful for you to help your employees to avoid future situations.
Any financial professional will tell you, it is essential for you to keep your beneficiary information on file and up to date, even for work provided benefits. This would include plans such as company paid life insurance, deferred compensation, and/or retirement accounts through an IRA, a 401(k), or a pension plan. It is essential for employers to have employees complete a beneficiary form for all of their accounts. Employers/benefit administrators typically have employees complete these forms upon eligibility but they are never mentioned again. Employers are encouraged to remind employees during the open enrollment process to make sure their beneficiaries are up to date. Marriage, Divorce, and Births occur during the employment cycle and many employees forget to update their beneficiary to reflect those changes. In addition, as a plan administrator, you must also remember to get updated beneficiary forms when you change providers. Many employers shop around for benefits and make carrier changes. It is essential that employees complete new beneficiary forms during such changes.
No one wants to deliver the news to a grieving spouse that the employee never updated their beneficiary. No, it is not an employer’s responsibility BUT if we see our job as assisting in the health and welfare of our employees, reminding them to update their beneficiary is an easy way to do that and to avoid such a situation.
Employment recordkeeping does not rank high on the list of favorite human resources functions, and is one of the more mundane tasks associated with Human Resources. However, it is extremely important and can get you into hot water if not done properly. Keeping appropriate recruiting and hiring documentation is vital to proving, if needed, your employment processes are compliant. Strategic HR has a great online tool that’s affordable, easily downloaded and ready for immediate use. Another one of our resources is our Recordkeeping Desktop Reference which has everything you need in regards to recordkeeping requirements mandated by law. Avoid the fines and minimize your stress level by having Strategic HR assist with your recordkeeping compliance. Visit our Recordkeeping page to learn more about our services.
Key Areas of Recordkeeping to Keep Up to Date in the New Year
Question:
As the new year begins, what specific tasks should I be thinking about to ensure we have our Recordkeeping up to date and accurate for the new year?
Answer:
Kudos to you for thinking proactively. As you close out last year and dive into the new year, there are a few key areas of Recordkeeping that you should take a look at to be sure you get a fresh start for the new year:
- Review your employee files!
- Is your filing caught up? Don’t let the pile continue into the new year. File it today!
- Have you removed terminated employee files from your active files?
- Randomly review a few employee files to ensure the right documents are being retained – nothing is missing and nothing needs removed. Depending on your findings, you may decide to audit all employee files.
- Audit your I-9 documents.
- Do you have one for every current employee?
- Are they completed accurately and in full?
- Have you separated your terminated employees from active?
- What I-9s can now be destroyed?
- Ask your employees to review their employee information!
- Do you have the most up to date mailing address to ensure timely distribution of W2s?
- Are their emergency contacts and contact information accurate?
- Any changes to their dependents’ information?
- Any changes needed for Federal and State tax allowances?
- Reconcile your employees’ Paid Time Off (vacation and sick days).
- Do your employees have time that will carry over into the new year?
- Is any time forfeited that was not used?
- Ensure up to date benefits information.
- Have you distributed new benefit cards (i.e. medical, dental, vision) to your employees?
- Do you have the right benefits information posted online or on bulletin boards as the new year begins?
- If you have Flexible Spending Accounts, remind employees of important deadlines to submit their FSA claims so they don’t lose money that’s been set aside.
- Is your employee salary information up to date with disability and life insurance policies?
- Review your employee handbook.
- Are there any policies that should be added or changed in your handbook?
- Update State and Federal Mandated Posters.
- Many states have new minimum wage requirements. Be sure your posters are displayed and showing up to date information.
- Create a calendar for the new year.
- Identify key requirements (i.e. W2 distribution, OSHA Logs, ACA Reporting, EEO-1 Reports)
- Note key events (i.e. performance review periods, merit increases)
- Plan your own development (i.e. conferences, events).
The list is not all inclusive, but it is meant to be a good starting point so you can add other things that you may think of to create your checklist.
Have you taken Strategic HR’s HR Checkup to make sure you are ready? For more information on the HR Checkup, contact Robin at 513-697-9855 or robin@strategichrinc.com to learn more.
Does A Hospital Overnight Stay Qualify for FMLA?
HR Question:
We have an employee that was admitted to the hospital overnight for a reaction to a medication. The condition does not meet the parameters of a serious health condition. He was only ill for two days and had no follow-up with the doctor. Does this hospital overnight stay qualify for FMLA?
HR Answer:
FMLA is one of the more challenging tasks that we have as HR professionals because each case is unique. The fact that you are reviewing this situation for FMLA, hopefully, means you know your organization qualifies (50 employees in a 75-mile radius). Secondly, does the employee qualify for FMLA? An employee must have been employed for one year and worked 1,250 hours in that year.
Assuming the answers to both of these are yes, then we consider if the circumstances qualify for FMLA. For a condition to qualify for FMLA, there are several things to consider:
- Was there an overnight stay in the hospital?
- Was the employee or family member “incapacitated for more than three consecutive days and requiring ongoing medical treatments (either multiple appointments with a healthcare provider or a single appointment and follow-up care, such as prescription medication)”?
- Is this a chronic condition causing occasional periods when the employee or family member are incapacitated and require treatment by a healthcare provider at least twice a year?
- Is the employee or family member pregnant?
For more details and a fabulous guide to FMLA, check out The Employee’s Guide to the Family and Medical Leave Act.
Based on these considerations, yes, if there is an overnight stay in the hospital, even if the condition may not qualify as serious, the absence qualifies as FMLA.
Navigating the Family Medical Leave Act can be daunting for even the best HR professional. Strategic HR’s team of HR professionals can help your organization manage the FMLA process and ensure the exposure to liability is mitigated. To discuss your FMLA needs, contact us. Plus, you can visit our Recordkeeping page to learn more about our other related services.
Avoid Penalties: Maintain a Legal Hiring Process
Question:
We are continuously chasing paperwork for employees that a manager may have hired but didn’t include HR in the hiring process. What problems does this present that we can share with the hiring managers?
Answer:
It is important to make sure HR is included in the hiring process to assure all items are completed and proper documentation on the process is maintained. If steps are skipped or documents missed, it can come back to haunt the employer in the future. Some of the items that are essential for HR review includes the following.
- I-9 Forms. Legally, the I-9 form must be completed within 3 days of date of hire. Not completing the form timely can result in hefty penalties for employers (https://www.uscis.gov/i-9-central/penalties)
- New Hire Reporting. In Ohio, new hires must be reported to the state within 20 days of hire. Each state has a different process or requirements for this. So, if you are in other states, check those requirements.
- Consistent Hiring Process. Consistency can lead to legal issues as well. For example, you run a risk that Manager A is not following the same procedure as Manager B for the similar role, which could be seen as discriminatory even if it isn’t intentional. This could be with regards to the interview process, background checks, drug screens, references, etc.
- Timely Benefit Enrollment. If new employees do not receive benefit enrollment paperwork in a timely manner, they may miss the window to enroll. For example, a client company offers Long Term Disability to their employees. If the form is not completed and employee enrolled in 30 days, they have to do a full physical and could be turned down for coverage.
- Consistent compensation allocations. Inconsistent compensation can lead to potential discrimination claims or just create internal equity issues. If a manager does not check with HR or Finance before an offer is made, it could completely upset the compensation structure within the company and even cause inequity issues.
- Communicating employer policies. If a new hire starts and is not provided the employee handbook and violates a policy, they could claim they never received the handbook, leading to (potentially) a wrongful termination. Employees must receive policy information and sign off on that receipt.
- Complete onboarding process. In today’s job market finding candidates and keeping them is a challenge. If new employees are not properly onboarded, from legally required paperwork to details about their job and the company, it could create a higher turnover rate.
As you can see, some of these items are legal and some can result in fines for the employers. Let HR “in the loop” on all hires before they happen and to make sure these problems don’t come back to haunt.
Employment recordkeeping does not rank high on the list of favorite human resources functions, but it is vitally important. Take the I-9 Form for example. Failure to complete this form on a new employee could result in a series of fines. Avoid the fines and minimize your stress level by having Strategic HR assist with your recordkeeping compliance. Visit our Recordkeeping page to learn more about our services.
Federal Employment Poster Requirements for On-Site and Remote Workers
HR Question:
I keep receiving notices that I need to order new posters to meet federal employment poster requirements. Many of my employees aren’t in the office regularly and those that are don’t look at the posters or any of the compliance documents we are required to distribute. What’s the risk if we don’t post these posters or distribute the annual notifications to employees? Eliminating this task would save me and the company a lot of time and money.
HR Answer:
Even if you feel employees are not reviewing the posters, there’s still a compelling reason to provide them. The Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), and the Employee Retirement Income Security Act (ERISA) require these employment postings and notices. And organizations that don’t comply with the requirements can be fined.
To save time, you can purchase a package of posters from a reputable vendor. This can be an easy, but potentially costly, way to fulfill the necessary poster requirements. However, if you would like a more cost-conscious solution, the DOL has a great option. Their Workplace Posters Overview provides a list of the necessary posters, along with links to downloadable posters in multiple languages.
Did you know that poster requirements can vary by company size and industry? If you’re not sure what federal posters your organization is required to provide, the DOL created the FirstStep Poster Advisor as an interactive, step-by-step guide to help you with poster compliance.
How to Meet Remote Employee Poster Requirements
As many employers have shifted their workforce to a remote or hybrid work model, these employers have to shift their typical in-office practices to meet the Department of Labor’s requirements for their remote employees. To remain in compliance, the DOL requires employers to post labor posters electronically in a file that is accessible by everyone. Also, the file should not be password protected.
Employees must be able to find employment posters for their organization regardless of their work location. So if employers have a hybrid work model, a best practice is to have posters physically posted at the worksite while also including the electronic version of the posters on an accessible intranet.
Penalties For Not Following Federal Employment Poster Requirements
If you are still asking yourself if it’s worth the hassle and expense, consider the potential penalties for non-compliance. In January 2022, the penalties for failure to post and/or provide notifications increased. Although some of the fines may not seem significant, they can add up quickly. According to the Federal Register, here is a sampling of the new maximum penalties for violating the following posting requirements:
- $189 — Family and Medical Leave Act (FMLA)
- $14,502 — Job Safety and Health: It’s the Law (OSHA)
- $23,011 — Employee Polygraph Protection Act (EPPA)
For notifications, the Employee Retirement Income Security Act (ERISA) has significant fines for:
- Failure to provide the Summary of Benefits and Coverage (SBC) Plan Description ($1,362 per failure)
- Failure to provide an automatic enrollment notice for your 401(k) plan ($2,046 per day per person)
The Federal Register Poster Fine Reference provides details for all the fines you can incur for failure to comply.
Don’t Forget About State-Mandated Posters
In addition to federal posters, you may also be required to provide state posters. Here are links to posters required by Ohio, Kentucky, Indiana, and all other states. We recommend consulting with your legal counsel to ensure that you provide all of the posters that are appropriate for your organization.
As you can see, there could be several employment posters that your organization is required to post. So, if you think you are going to save time and money by not posting these materials, you may want to reconsider the potential fines and penalties that could result from non-compliance. Is it worth the risk?
Thank you to Patti Dunham, MBA, MA, SPHR, SHRM-SCP, Director of HR Solutions for contributing to this HR Question of the Week.
Recordkeeping is one of the more mundane tasks associated with Human Resources, but it is extremely important and can get you into hot water if not done properly. Learn how Clark Schaefer Strategic HR can help with your HR Compliance and Recordkeeping needs. Feel free to Contact Us with any specific questions you may have.
When To Complete an I9 for a Rehired Employee?
Question:
We are starting to gear up for seasonal hiring for the summer. If I rehire seasonal workers from last year, do I need to have them complete a new I9 form?
Answer:
According to the United States Citizenship and Immigration Services, if an employee is rehired within three (3) years of the date that a previous Form I-9 was completed there are two options:
- The employer may complete a new Form I-9 for the worker.
- Complete Section 3 of the previously completed Form I-9.
Recordkeeping can be a daunting task, especially once you get behind in filing. Keeping some documents accessible, but confidential is extremely important. Strategic HR has an easy to use desktop reference to assist with managing employee documentation and record retention. Visit our HR Store page to learn more about this handy tool.
I-9 Forms for Seasonal Employees
Question:
We have many employees who return to work for us each summer as seasonal employees. Do I need to complete a new I9 for them each year or just use their old form?
Answer:
According to the US Citizenship and Immigration Service website, if the seasonal worker is continuing in his or her employment and has a reasonable expectation of employment at all times, his or her return to work would not be considered a new hire, so a new Form I-9 is not required. If the worker is not considered to be continuing in his or her employment, then the old form may still be sufficient to meet the verification requirements if the worker’s return to work is a rehire within 3 years from the date the old Form I-9 was completed. The employer can complete Section 3 of the old form or use Section 3 of a new form and attach it to the previous form. If re-verification is not necessary, provide the rehire date and complete the attestation portion of Section 3.
However, the employer should ensure that any necessary re-verification has been completed timely. The employer should complete the rehire date, re-verification and attestation fields if work authorization has since expired. If re-verification is necessary and there is a new version of the Form I-9, Section 3 of the new version must be completed and attached to the previous form.
For additional information, click here.
Recordkeeping can be a daunting task, especially when you are trying to clean out old records and keep handy the pertinent ones. Keeping track of all the paper is extremely challenging. Strategic HR understands your frustration and has many tried-and-trusted tips on recordkeeping. Visit our Recordkeeping page to learn different ways Strategic HR can help you with your recordkeeping.
Hiring Foreign Nationals
Question:
What should I know about hiring foreign nationals and how can I avoid discrimination claims in the hiring process?
Answer:
It is important for employers to understand the federal laws and regulations regarding immigration status and national origin discrimination. Discrimination may be happening without the employer even knowing, but guess what? It’s still illegal and employers who participate in discriminatory behavior can be required to pay civil penalties and also backpay to any injured parties.
So, how can this be avoided? The U.S. Department of Justice, Office of Special Counsel offers some scenarios in which employers have violated discrimination laws. Below are a couple of the major “don’ts” when it comes to hiring without discrimination.
- Do not request additional documentation from non-US citizens that are lawfully authorized to work in the US. If non-US citizens are legally allowed to work in the US and they have supplied appropriate documents such as valid driver’s license or unrestricted social security card, they do not need to provide any other additional documentation. They should be treated no differently than US citizens going through the same process.
- Do not reject work authorization documents from non-US citizens but accept the same documents from US citizens.
- Do not immediately rule out applicants that receive a Tentative Nonconfirmation (TNC) on E-Verify, as there could be many reasons why that notice was received.
- Do not use E-Verify on a selective basis to rule out “foreign” candidates.
- Do not reject applicants that “look or sound” foreign. If an employer is refusing to hire any applicants solely based on the fact that they look or appear foreign, this is an obvious violation of discrimination laws.
Recordkeeping can be a challenge, especially when there are files everywhere! Keeping a handle on what is where is vital to staying compliant with the law and out of hot water. Know what to keep, where to keep it and for how long with our handy-dandy Recordkeeping Desktop Reference. It’s affordable, downloadable for immediate use, and only from Strategic HR Visit our Desktop Reference page to get your copy today.
Electronic Recordkeeping Checklist
HR Question:
What do I need to consider when moving to an electronic filing system?
HR Answer:
Electronic communication and recordkeeping is a great way to save space and allow quick access to files. But it takes some effort to get the systems set up properly and to convert paper to e-files. In considering what type of system will work best for your organization, there are many items that must be kept in mind during the transition. The following pre-implementation checklist will help to reduce potential risks associated with electronic recordkeeping systems.
- Validation – Recordkeeping system must be validated to ensure that the documents are truly valid (i.e. accurate, reliable, non-altered documents).
- Readability – Must be able to print an accurate, legible, readable copy of the record.
- Access – Must take measures to protect items from unauthorized access.
- Protection/Confidentiality – Must contain legally acceptable means to protect records.
- Retrievable – Must provide a means for easily accessible files and retrieval.
- Audit Trail – Must use secure, computer-generated, time-stamped audit trails to independently record the date and time of operator entries to assist with validation.
- Back Ups – Provide a process for the electronic storage including procedures for labeling of electronically maintained records and a secure storage environment, including an off-site storage location.
- Quality Assurance Program – Regular review of the electronic recordkeeping system, including periodic checks of the records.
- Disposal of Originals – Properly dispose of the originals after they are transferred to an electronic recordkeeping system. Documents which have legal significance or inherent value as original records (i.e. notarized documents, sealed documents) should be maintained as originals.
- Record Retention – “Cleaning house” presents new challenges for electronic recordkeeping if your files are not stored accurately or with enough detail to evaluate destroy dates. One consideration when storing files would be to store records via functional area, similar to how you store files today. Also, pull potential audit or legislative issues in a separate file for frequent evaluation.
With some forethought and planning moving from paper-based to electronic files will reward you greatly with time, and ultimately cost, savings.
Recordkeeping is one of the more mundane tasks associated with Human Resources, but is extremely important and can get you into hot water if not done properly. Keeping the right files easily accessible and up-to-date is vital. We have years of experience maintaining HR documentation and knowing what to keep and what to pitch. Need some help? Visit our Recordkeeping page to learn more.
Managers Maintaining Personnel Files
Question:
One of our Department Managers wants to keep his own set of personnel files for his employees at his desk. Is there a legal reason for him not to do this?
Answer:
There is no law forbidding your manager from maintaining separate personnel files (i.e., “desk files”) for their employees. However, there are many laws that govern which documents an employer must keep, how they should be maintained, how long they are kept and in what manner they are to be destroyed. It is important that HR ensures that managers understand this responsibility if they want to keep their own files. In fact, just these requirements alone may make it impractical for many employers to allow separate desk files.
If you do decide to allow your managers to maintain their own files, here are some general guidelines:
Items you CAN have in a Desk File:
- Observations about the employee’s job performance
- Examples of the employee’s job performance and documents establishing the employee’s goals
- Commendations and/or performance improvement documentation
- Performance reviews
- Attendance records and time-off requests
Items you CANNOT have in Desk File:
- Doctor’s notes or any other medical documentation
- Workers’ compensation claim documents, including the supervisor’s report on the injury
- Any formal or informal legal claim by or about the employee
- Employee’s Form I-9
- Any workplace investigation materials regarding the employee
- Background investigation reports
- Personality or other test results
- Any non-job-related information, e.g., personal information about the employee
It’s easy to understand why a manager would like to keep his own records close at hand. But it is imperative that HR properly trains managers in what they can and cannot keep and instructs them in the reasons why these rules are in place. It’s a good idea to conduct an occasional audit of separate files to make sure managers are in compliance with your policies on recordkeeping.
Recordkeeping can be a challenge, especially when there are files everywhere! Keeping a handle on what is where is vital to staying compliant with the law and out of hot water. Know what to keep, where to keep it and for how long with our handy-dandy Recordkeeping Desktop Reference. It’s affordable, downloadable for immediate use, and only from Strategic HR Visit our Desktop Reference page to get your copy today.
Disposing of Old Records
Question:
What is the proper way to dispose of old employment records?
Answer:
Recycling is good for the environment, but it’s not the best way to dispose of your old employment records. While there are no hard-and-fast rules for “how” to dispose of such documents there are some other examples we can look to for guidance.
Turning to the government, in 2005 the Fair and Accurate Credit Transactions Act (FACT Act) created the Disposal Rule to provide direction for the proper disposal of information or documents derived from a consumer report obtained for business use. While the rule applies only to items derived from a consumer report, in many instances employment records contain such information typically gathered via background or credit checks. The Disposal Rule states that businesses must take “reasonable measures” to protect against unauthorized use of such information during and after its disposal. Failure to dispose of such information in a proper manner can result in substantial fines (up to $1,000 plus costs and attorneys fees), however, there are no specific guidelines for HOW to dispose of such items.
Which leads us to the healthcare industry. Known for handling enormous amounts of sensitive health-related information on a daily basis, the healthcare industry takes meticulous care with similarly private and personal information, including measures for it’s destruction. Document disposal guidelines in medical facilities often include:
- Keeping a schedule of destruction activities – to know when certain documents are eligible for disposal.
- Maintaining a log of the documents being destroyed.
- Destroying documents on company grounds (versus sending them off-site for destruction by shredding or incineration).
- Having two employees responsible for the document destruction to ensure proper disposal and to acknowledge that the destruction took place.
- Using the same method of destruction each time.
Taking into consideration the number of documents you need to destroy and your budget, the method of destruction is really up to you. There are document companies that will come to your location and under your supervision destroy (usually by shredding) documents and then send them off for recycling.
Recordkeeping can be a daunting task, especially when you are trying to clean out old records and keep handy the pertinent ones. Keeping track of all the documents created in an employment situation is extremely challenging. Strategic HR understands your frustration and has many tried-and-trusted tips on Employment Recordkeeping. Visit our Recordkeeping page to learn more about getting your employment records in order.
Performance Review Copies
HR Question:
Am I required to provide my employees with a copy of their performance reviews?
HR Answer:
We consider it a best practice to give employees a copy of their performance review since it is being discussed with them, it can affect your/management’s decisions regarding their compensation, and it is a signed document. However, no law mandates that you provide it to the employee. See below for an excerpt from Nolo on State Laws on Access to your Personnel File:
While many states now have some type of law regulating personnel files…most of these laws control not the content of the files, but, rather:
• Whether and how employees and former employees can get access to their personnel files,
• Whether employees are entitled to copies of the documents in them, and
• How employees can contest and correct erroneous information in their files.
In some states, [employees] have a right to see those files only if they are related to a lawsuit [the employee] filed against [his/her] employer or former employer. Even then, [he/she] might be in for a legal battle over what portions of the files are relevant to the case. But, in many states, [employees] have the right to see the contents of [their] personnel file—or at least some of the documents in it—without filing a lawsuit.
In Ohio, for example, “there is no law in Ohio that requires an employer to grant an employee access to his or her personnel file. There are, however, two key exceptions: medical records and wage and hour records” (Source).
Let Strategic HR help you navigate the employment law minefield. Ask us for assistance with any of your HR Compliance needs. Please visit our Compliance page for more information on any of these services.
Employee Files
Question:
I’m a new HR assistant in a company that hasn’t had an HR presence before. The secretary previously handled all of the personnel paperwork and the files are a mess. What’s the first thing I should do?
Answer:
Keeping employee files “clean” are a very important part of human resources. If you have inherited a mess we would recommend taking the time to review each file for completeness as well as ensuring all of the paperwork is in its appropriate place. The following is a guideline of documents that should be included in employment files as well as “where” they should be housed.
In general, a minimum of 2 files should be maintained for each employee. However, that number may increase based upon the number of actions for an employee. You will probably have an Employee Main File and an Employee Medical/Benefits File (i.e., benefit enrollment forms, profit sharing, 401(k), insurance claim forms, COBRA letter). In addition, separate files should be maintained for such documents as: Child Support Orders, EEO charges, Exit Interview, I-9 Forms, litigation documents, Workers Compensation claims, and Affirmative Action; however, a separate file isn’tnecessary for each employee.
Review your files and ensure the information is stored properly toavoid compliance concerns in the future.
What can go into the main personnel file?
• Application
• Offer Letter
• W-4 Form
• Nondisclosure Agreement
• Orientation and/or Termination Checklists
• Performance Appraisals
• Salary Information
• Official Performance Information (i.e., letters or memos)
• Payroll Data
• Tuition Reimbursement Information
• Copies of Credentials (i.e., certificates, license, diplomas)
• Sign off sheets / Policy acknowledgement forms
• Training information
What cannot go into a personnel file?
• Information related to medical, injuries, and disabilities
• Information disclosing affirmative action identification
• Applications that include non-job related information
• I-9 Form
• Subjective documentation and/or performance appraisals
What records can/cannot be kept together?
Typically, the following files are all kept separate:
• Employee File
• Employee Medical File
• Child Support
• EEO Charges
• Exit Interview Form
• I-9 Form
• Litigation Documents
• Workers Compensation Claims
• Affirmative Action
Recordkeeping can be a daunting task, especially once you get behind in filing. Keeping some documents accessible, but confidential is extremely important. Strategic HR has an easy to use desktop reference to assist with managing employee documentation and record retention. Visit our HR Store page to learn more about this handy tool.
Requiring Employee Contact Information
Question:
Can my company require our employees to provide their personal cell phone number and home email address?
Answer:
A follow up question to you might be, why do you need them? If it is for emergency notifications, that is one thing, however if it is for working purposes, you would be better off providing them with a work email or cell phone. With email, it is best to make sure that any work related communications are managed in the secure environment of your company server. Also keep in mind that email or phone calls made outside of work hours to non-exempt employees count as “time worked”. Make sure you are tracking that time and paying overtime accordingly.
Today’s employees are on a constant search for work/life balance; it is a key factor in choosing an employer and, sometimes, the decision to leave. As a job requirement you could most likely require them to provide you with two ways to reach them and then suggest they provide a cell phone number and home email address; but requiring it might be a stretch. As long as they give you a way to reach them during off hours that should suffice.
Recordkeeping is one of the more mundane tasks associated with Human Resources, but is extremely important. Keeping documentation of corrective actions, counseling sessions and performance appraisals are vital to making sure you are being consistent with your disciplinary and performance policies. Strategic HR has a great online tool that’s affordable, easily downloaded and ready for immediate use. Our Coaching and Counseling toolkit has sample policies and forms to help you with your Counseling needs. Visit our Communications page to learn more.
What to Include in a Written Warning
Question:
I was told that I should give a written warning to a problem employee to create documentation. What should the written warning include?
Answer:
First make sure you are following your established disciplinary policy and procedures. Do you have any steps prior to a written warning that need to take place (i.e. counseling, verbal warning, etc.)? Assuming that giving a written warning follows your typical disciplinary procedures, you’ll want to create a record of discussion and document the following:
- Employee and Supervisor’s Name
- Date of the written warning / disciplinary action
- Description of the performance issue being addressed
- Corrective action required by employee
- Resources available to assist the employee (if applicable)
- Consequences of not improving performance
- Date for follow up discussion
- Acknowledgement of the warning by employee and supervisor
A copy of this document should be placed in the employee file. Be sure to follow up on the documented date to follow through with the disciplinary procedure.
Recordkeeping is one of the more mundane tasks associated with Human Resources, but is extremely important. Keeping documentation of corrective actions, counseling sessions and performance appraisals are vital to making sure you are being consistent with your disciplinary and performance policies. Strategic HR has a great online tool that’s affordable, easily downloaded and ready for immediate use. Our Coaching and Counseling toolkit has sample policies and forms to help you with your Counseling needs. Visit our Recordkeeping page to learn more.
