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What to keep in your employee files

A small law firm's guide

The lawyer who represents himself has a fool for a client, Abraham Lincoln once said. But the solo or small firm lawyer may represent him or herself as IT Director, Chief Marketing Officer or Director of Human Resources for the firm, among other responsibilities. At least the lawyer with a fool for a client has had some formal training in the discipline.

In some small law firms, there may be no personnel file or other records for employees besides payroll and tax records.

Let’s discuss briefly what the small firm lawyer forced to serve as Human Resources Director would want to keep in the personnel files.

At a minimum, you should have a separate file for every employee. That file should contain the contact information for the employee, emergency contact information and every Form W-4 the employee has furnished to the firm.

Copies of all W-2s and other payroll and tax information could be kept in the employment file, but often are not. As long as the tax and payroll records are maintained by the firm, the location is not significant. Those records will suffice to provide the firm with the information needed to manage the employee’s payroll.

Beyond the basics, a smart lawyer will recognize that there are many other benefits of good personnel file practices, including reducing or eliminating potential liability by taking a few additional record-keeping steps.

Rebecca Simkins, an employment attorney at Barris, Sott, Denn & Driker, P.L.L.C. in Detroit, recommends that a personnel file for a law firm employee include the following:

• A job description.

The solo lawyer with only one employee may think this is a silly exercise since the “real” job description is doing everything that the lawyer requests (or doesn’t want to do).

But preparing a brief description of the position may prove beneficial. For example, if the assistant occasionally is called upon to leave work a few minutes early at the end of the day to drop off a bank deposit a few miles away, then possessing a driver’s license may be a job requirement.

Preparing a job description before interviewing candidates also helps the lawyer avoid problematic questions during the interview process.

“If it doesn’t have to do with the ability to perform job duties, don’t ask about it,” advises Simkins.

• A written employment application.

Every personnel file should contain an application completed and signed by the candidate prior to employment. This document should contain a statement that the candidate verifies the truthfulness of all of the information in the application and that false information can constitute grounds for termination.

• Copies of all documents submitted during the application process.

This includes resumes, cover letters, writing samples and any other relevant documents submitted during the hiring process.

• A copy of the written offer of employment.

Lawyers appreciate that significant legal agreements should be in writing, not just communicated orally. A written offer of employment is critical to make sure that the terms of employment are formally documented.

This is particularly important if special conditions or requirements are included (e.g. employer agrees that the employee will not be asked to work overtime on Wednesday evenings). It does not require much imagination to see how this could benefit both the law firm and the employee.

• Completed evaluations of the employee’s performance.

Employee evaluations should be done at least annually. A written summary of the evaluation should be given to the employee and a copy with the employee’s signature acknowledging receipt should be placed in the personnel file.

If an employee disagrees with an evaluation, he or she should be encouraged to include any signed statement in response in his or her file.

• Notes about the employee’s errors.

Since drafts of documents are typically shredded, it may be hard to demonstrate a new employee’s errors should you later need to do so.

Making a copy of your notes outlining mistakes and your corrections on a project can be a useful addition to the file.

• Ongoing miscellaneous additions.

Greeting cards, personal notes from the employee and a host of other miscellaneous communications can also be useful to retain. For instance, if the employee regularly wrote about what a great place to work the firm was, why wouldn’t you want to document that?

Simkins recalled one case where an ex-employee was testifying about poor working conditions on behalf of another former employee who was suing the employer. She appeared very surprised to be cross-examined with notes in her own handwriting that she had given to her supervisor about what a great place it was to work.

Keep files secure

Of course, personnel files should be kept in a secure location.

This could be a locked drawer or safe, if no one other than management has access to it. Digital administrative files should be stored in an area on the network where access is restricted to few individuals. The file contains personal information that should not be made available to other co-workers.

But there’s another equally important reason for securing the file. Unsecured personnel files have been known to disappear at the same time a departing employee does. That may turn out to be one lost file that the law firm would really like to have back.

Lawyers tend to be concerned about whether the ultimate use of a record will be beneficial to them or problematic. While there are no guarantees, attorneys should trust that treating employees well and accurately documenting the above items are positive actions for a law practice. After all, trying to convince a judge or jury that a successful law firm never kept any written records about employees may be a truth that is too hard for them to believe.

Jim Calloway is the Director of the Oklahoma Bar Association Management Assistance Program. He publishes the weblog, Jim Calloway’s Law Practice Tips at http://jimcalloway.typepad.com. He serves on the ABA Law Practice Management Section Council and is also chair of its Practice Management Advisor’s committee.  He is a frequent speaker on law office management and technology issues.

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