“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
www.uscis.gov/files/form/i-9.pdf. 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.
44 TEXAS MEDICINE May 2013
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,
www.twc.state.tx.us/news/efte/ 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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