RAQs: Recently Asked Questions

Topic: Optional removal of materials from personnel records - 6/29/2020
The library is using NYS Archives and Civil Service references to set personnel and payroll files ...
Posted: Monday, June 29, 2020 Permalink

MEMBER QUESTION

The library is using NYS Archives and Civil Service references to set personnel and payroll files records retention and disposition.

A question arose regarding employee rights to request removal of materials from personnel records.

The committee’s question was specifically about removal of a negative matter after the minimum required retention time had elapsed.

In this instance there was no question about the accuracy of the record nor was there litigation involved or anticipated.

WNYLRC ATTORNEY'S RESPONSE

There are a lot of little details to address in considering this question, but first, there is one big principle I must emphasize. When it comes to records retention—and especially when it comes to employee-related records—nothing should be discretionary.

In other words, if an employer wants to create a process where every corrective action plan,[1] performance evaluation, employment-related investigation, or incident report is removed after its minimum retention period has elapsed, that is fine. However, unless it is a benefit that has been carefully negotiated and confirmed in a contract,[2] there should be no process for an employee to initiate optional removal of materials, and by no means should that process require the employer to make a “yes” or “no” decision.

The moment personnel records that could be interpreted as “negative” become subject to an employee-initiated, optional procedure, the employer, simply by having such a procedure, has: 1) admitted that possibility that the materials could have a negative impact on the employee; 2) created a system where such material could be retained inadvertently; and 3) set up a scenario where such a request could accidentally or deliberately be denied or perceived as somehow subject for debate, potentially triggering the possibility of a complaint, litigation, or a damage claim.[3]

Unless retention is being considered for historic/archival purposes, record retention or destruction should never be discretionary (and of course, the decision to retain certain records for historic/archival purposes should be based on objective criteria).  The best approach for management of employee performance-related records is simply that they be retained as required, or be purged when no longer needed, based purely on the category (not the substance) of the records’ content.[4]

So, my answer to this question is: there should be no process for an employee to request optional removal of negative materials from a personnel file. Rather, the removal of material from personnel files should only happen per uniformly and routinely applied policy.[5]  If a negative review or incident report has served its purpose and is no longer needed,[6] it may be removed as part of the routine purging policy and process. If it is still needed, it should be retained.  There should be no middle ground; it creates risk.  If your library is part of a collective bargaining agreement or uses contracts that include this approach, employees should all be notified and trained on how to exercise these rights.

Thank you for an insightful question.



[1] Just in case you are new to the Human Resources world, a “corrective action plan” is a time-limited plan with a clearly articulated goal and measurable steps to address a performance concern.  Here is an example of a properly formulated Corrective Action Plan, taken from my domestic life: “To ensure optimal vegetable growth and family cohesion, for the next eight weeks, every family member will spend no less than ten minutes weeding per day.  To enable verification, family members will place uprooted weeds on the Stick Pile.”  Now, here is an improperly formulated version: “If you Ingrates don’t help me in the garden today, I will put a dead thistle by your pillow tonight.”  Both techniques can, of course, yield results, but only one wins the “Happiest Workplace” award.

[2] Of course, a collective bargaining agreement could create the right to request removal of accurate information from a personnel file.  Again, however, because such a discretionary approach might not be exercised or even known by all employees, I don't see this as a fair or helpful clause (to either employees, or the employer).  A better option would be a simple records purge, or a purge tied to an objective performance metric (“after three years of ‘satisfactory’ reviews, this Corrective Action Plan will be removed from the employee’s record”).

[3] These are all the “little details” I mention in the opening sentence, but as you can see, they aren’t so little.

[4] With all due consideration of privacy.

[5] This could include, by the way, a Corrective Action Plan process with a “self-destruct” measure for the guts of the “negative” issue.  In other words, the CAP policy itself could say “Upon satisfactory completion of a Corrective Action Plan, after # years, the only record retained will be the summary note confirming successful completion of a Plan of Improvement.”  But again, this should be per a uniformly applied policy, not a discretionary request.

[6] By “needed,” I mean, among other things, that proof of the remedial action taken by the employer is no longer required to protect the employer.  While many policies base this on statutes of limitations, most only start the clock after the employee’s period of employment is over, and that, in my view, is generally the most prudent choice.

Tags: Employee Rights, Management, Policy, Retention, Personnel Records

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