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“If you are not sure if a question violates federal or state law, you are better off not asking the question and checking with your legal counsel.”

cation. You can download I-9 forms at The Texas Workforce Commission says employers must keep I-9 records for three years after the date of hire or for one year after an employee leaves. But the commission recommends keep- ing all employment records for at least seven years after an employee leaves to exhaust all the statutes of limitation. Mr. Cockerham says federal law out-

lines the following additional record re- tention requirements:

• Occupational Safety and Health Ad- ministration (OSHA) and injury re- cords: five years;

• Payroll-related records: five years; • Employee benefits records: six years; and,

• Federal Insurance Contributions Act (FICA) records: four years.

Additionally, the Americans with Dis-

be helpful when determining employee raises, promotions, or disciplinary ac- tions,” said TMA Associate Vice President of Human Resources Jeppe G. Ross. Dallas labor and employment attor-

ney W. Stephen Cockerham says docu- menting an employee’s work history and job performance in the personnel file is especially relevant when making em- ployment determinations. “If an employee has been tardy sev- eral times and the personnel file reflects a history of being tardy and documents warnings and disciplinary actions re- lated to the infraction, termination of employment may be appropriate. The employer needs to go through the pro- cess of documenting the tardiness, coun- seling sessions, warnings, and any disci- pline to establish a basis for termination,” he said. When an employee’s job performance

presents a problem, Mr. Cockerham says accurate performance evaluations are a must.

“In the event an employer wants to terminate an employee for poor per- formance, having a history of that poor performance in the personnel file is im- portant. Otherwise, the employee could possibly claim discrimination,” he said.


Keep it separate Mr. Cockerham says employers should store each employee’s Employment Eligibility Verification (I-9) form separately from other documents. Employers must complete an I-9 form for each employee within three business days after hiring the employee. “There are technical requirements

related to completing the form and re- lated to the documents that may be ac- cepted to support the new hire’s identity and authorization to work in the United States,” he said. “Often in smaller busi- nesses, the person completing the form doesn’t have adequate training, and the form is often filled out incorrectly.” Common mistakes Mr. Cockerham cites include incorrectly dating the doc- ument or failing to have the employee sign it. “I recommend periodic audits of the I-9s to ensure compliance,” he said. I-9 forms identify which documents employees may submit to verify their employment eligibility. The U.S. Depart- ment of Homeland Security’s I-9 rule states that only unexpired documents such as passports and alien registra- tion receipt cards or permanent resident cards are acceptable forms of identifi-

abilities Act of 1990 requires employers to keep any employee medical records in separate, confidential files. Especially for Texas Employers, a Tex-

as Workforce Commission publication, contains a sample medical information confidentiality policy that defines medi- cal information and outlines who can ac- cess the information and potential dis- ciplinary actions for violating the policy. Access the policy from the publication online, tocmain.html.

Because maintaining personnel files has legal implications, Mr. Cockerham advises medical practices to make sure relevant staff members receive training. He says training should focus on:

• What the file should and shouldn’t contain;

• The treatment of I-9 forms and em- ployee medical information;

• The importance of maintaining confi- dentiality;

• Secure record storage; and • Appropriate wording of notes related to employee counseling sessions, dis- cipline, and evaluations.

Mr. Cockerham explains some state- ments can get an employer in trouble

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