August 2019

A common question we often hear among employees is “What does human resources do?”.

• Working with state and federal agencies such as the EEOC, FMLA and ICE to ensure compliance with labor law and employment standards

 * To date, the Employee Rights Act is not law and has been referred to the United States House Committee on Education and the Workforce.

HR documentation often contains sensitive and confidential information.

From a legal standpoint, there are several points to consider to ensure HR compliance.

At a minimum, your organization’s HR Policies and Procedures should include details on the following:

• Employee privacy: medical and other sensitive information
• HR audit process and procedures
• Electronic Discovery (eDiscovery)
• Document maintenance schedules & HR record retention

Whether you are the Director of Human Resources, the Head of HR, a HR Business Partner (HRBP) or a Manager of Human Resources, you will want to ensure your HR department is compliant.

The cost of non-compliance could be personal liability in a lawsuit.

In 2016, the US Second Circuit Court of Appeals ruled employees can be held personally liable under the FMLA. Even before this ruling, supervisors have been held liable in previous legal cases within the United States.

In 2002, two supervisors were held personally liable to each pay $450,000 after almost $12 million was awarded to a fired employee.

According to Villanova University, the EEOC handled 88,778 charges of workplace discrimination in 2014.

This resulted in the EEOC filing 133 lawsuits and $22.5 million in monetary relief for the victims.

The #1 recommendation by Villanova University to avoid HR Lawsuits is:

“Document, Document, Document”

So how should you organize your Human Resource files to help ensure compliance and proper documentation?

Here are a few things to consider:

Employee Privacy Rights: Medical Information and Other Sensitive Data or Details

Record of Employment (ROE) / HR Hiring Records

Record of Employment forms may contain the following information:

• Birth date (divulging the employee’s age)
• Social security number (which should be kept private)
• Inclusion in a protected class (which may come up as part of background screening)

You’ll want to keep all record of employment forms to be able to PROVE fair and non-discriminatory hiring practices.

You will also want to consider keeping ROE’s separate so that the organization can reduce the risk of claims that a manager subsequently used the information in a discriminatory way.

Equal Employment Opportunity (EEO) Records

Equal Employment Opportunity (EEO) records should be kept separate from other files, inaccessible to anyone who is not involved in EEO reporting.

A key reason for this is that the information contained in EEO records cannot legally be used in hiring decisions.

Therefore, anyone involved in employment decisions, especially individuals such as hiring managers, should be prevented from accessing this information to protect against accusations that this information influenced a hiring decision.

Employees can file a complaint with the Equal Employment Opportunity Commission (EEOC) for different discriminatory reasons, including retaliation for making an EEOC claim.

Ensuring that this information is protected and secured is essential in helping to PROVE that retaliation did not occur.

Payroll Information

The confidentiality of payroll information is important to ensuring your employees privacy.

Payroll information includes anything related to payroll decisions and benefits.

Although you may not be legally required to keep payroll information separate, it’s generally a good idea to do so.

This includes paperwork such as:

I-9 Documents

Most organizations keep I-9 documents separate from other employee files for two specific reasons:

• I-9 Documents can divulge an employee’s inclusion in a protected class
• I-9 Audits will be easier to manage (more on I-9 audits below)

Per Title VII of the Civil Rights Act, employers cannot make employment decisions based upon national origin, race, sex, color, or religion. I-9 Documents may contain information that divulges several of these characteristics.

Therefore, I-9 Documents should be protected and only accessible to select individuals in the organization to help protect against lawsuits.

View & Download I-9 Form

Source: https://www.uscis.gov/i-9

Workplace Investigations – Information About Multiple Employees

If there is a legal dispute or an allegation of wrongdoing by an employee, a company should never destroy a Human Resource document or file related to that matter.

To help ensure HR compliance, your HR department should have a way to mark files and documents for disclosure so that they do not get altered or deleted once legal proceedings have been initiated.

If your organization is subject to an HR audit by the Department of Labor (DOL) or EEOC, it would be helpful to have your Human Resource documents organized in a way that makes it simple to comply with the HR audit requirements—while ensuring that no unnecessary information gets included in the audit.

This is key for I-9 Documents. I-9 Documents are often the subject of HR audits known as I-9 Audits, carried out by ICE.

For this reason, many employers opt to keep I-9 Documents separate from other employee documents.

While you’re not legally required to keep the I-9 paperwork separate, it will make the I-9 audit process simpler.

Due to the potential costs associated with I-9 Audit penalties, many organizations opt to conduct an I-9 self-audit.

Here is a useful internal I-9 self-audit checklist for your organization.

FMLA self-audits are also used to ensure FMLA compliance prior to any potential investigation being started by the DOL. FMLA issues can result in high-priced penalties by the DOL if they discover systemic problems within your organization.

I-9 Fines and penalties can range from $178 to $1,782 per violation for Committing Document Abuse and up to $21,563 per unauthorized alien employed by an organization for a 3^rd infraction.

Fully understanding how the inspection process works will quickly make you realize how important proper documentation is to ensuring your organization is compliant and able to successful navigate any future HR Audits.

For example, organizations are often fined for simple mistakes such as not entering an employee’s name correctly or fully completing a section before a particular date.

If your HR system is difficult to use or maintain, simple mistakes that go unnoticed could result in significant fines as a result of multiple I-9 infractions.

One aspect of legal compliance in HR is keeping your documentation up-to-date.

Ensuring that your files are organized properly will assist your document maintenance efforts and keep those files current, while keeping private information secure.  As an example, updating employee personnel files, such as handbook acknowledgements, should be simple and efficient, but you’ll still want to protect or limit access to other private information in the file.

How you organize your files can also have an impact on complying with legally mandated retention periods.

How long you must keep employees’ files (including documents for former employees) varies by file type and by State.

You will also need a way to ensure that documents are not deleted if they are subject to legal proceedings—even if they would otherwise be eligible for deletion.

An HR Record System must ensure that records are available quickly to those fulfilling the various duties of HR, while meeting compliance standards and protecting private information.

It must also be easy to use, because if it’s too difficult to use, people will look for shortcuts.

This also speaks to the need to properly train the employees who will be using the system to ensure they understand how it works and what security systems are in place.

This will greatly increase the system acceptance, usability, and productivity.

Keeping in mind the legal issues outlined previously, the organization of HR files comes down to the organization’s preferences.

This might mean that Company A opts to create folders for each employee, and create sub folders for each type of document.

Company B may opt to create folders for each type of document (such as hiring records or I-9 files) and create a sub folder for each employee in each section.

At the end of the day, as long as you have the proper safeguards in place to ensure that access is controlled, the details of the file organization is up to you.

Which is the best for you may depend on the size and complexity of your organization, how frequently you conduct audits, how closely you maintain a document maintenance/purging schedule, and how you will search for and access the documents in the future.

Utilizing a Forensic Electronic Document Management System (FEDMS) to organize HR files is an excellent HR management software solution.

Keeping everything separate (in terms of secure access), yet organized in an efficient manner, is much easier if you have a FEDMS.

Having a FEDMS means the ability to keep things stored together – since they’re stored digitally – yet still keep private documents separate through electronic security features that allow passwords and access controls.

You’ll have the efficiency associated with keeping things all in one place, without sacrificing security and confidentiality.

You’ll maintain the ability to turn over records in an audit or disclose the appropriate documents during legal proceedings.

Forensic Notes is currently the only FEDMS on the market ensuring that your HR documents meet the high standards of digital forensic evidence within the courts.

Forensic Notes offers features and solutions that simply don’t exist in other HR Software products.

Forensic Notes is designed to act like a legal Notebook in electronic form.

What this means is that you can present all employee documents as one court-verifiable PDF or electronic package making disclosure quick and easy.

This serves as a benefit for you legally, as it provides an efficient method to disclose electronic information you have about an employee while being able to verify the integrity of the documents.

As a result, the use of a FEDMS improves the legal credibility of your organization by helping you PROVE that the documents have not been altered and that documents that may have been pertinent to the case have not been destroyed.

Forensic Notes is also safe & secure.

We proudly discuss how we secure and encrypt your data in transit and at rest.

In addition, every note saved uses a different encryption key to further safeguard your organization data and help ensure it meets compliance requirements.

For details, please review how we secure your data.

Just like legal notebooks which are trusted by the courts in high profile criminal investigations, all evidence and information related to the case is available.

Of course, your organization always has the option to delete a Forensic Notebook and all associated documents if it is no longer required.

In this way, it’s similar to a physical legal notebook which can be shredded once it is no longer required.

Being thorough with the disclosure can help you avoid court sanctions that may come about for non-compliance with disclosure obligations.

In other words, simply having a system that helps you maintain organization and PROVE you’re complying can assist your credibility in legal proceedings which will save your organization both time and money.

Small & Medium Sized Businesses (SMB’s)

For small and medium sized businesses (SMB’s), Forensic Notes is the only HR Software solution you need.

It provides your HR staff the means to document their actions efficiently as they carry out their duties; while also helping to protect your organization from employee lawsuits and government agency audits.

Large Organization

For large organizations, Forensic Notes will not be your only HR solution, but rather it can be used as a forensically-sound, secure vault for HR Performance Management Systems (PMS) documents.

The reality is that even large scale PMS’s are not designed to be forensically-sound.

Continue using your current PMS software, while storing sensitive information with Forensic Notes to forensically timestamp the document and protect the integrity of those document in the event of audits or lawsuits.

If you want to ensure your most important HR documents, such as I-9 Documents, are forensically verifiable and court-ready, integrate Forensic Notes to give your organization an advantage for any future court proceedings.

I-9 Completed Form

Below is an I-9 Completed Form saved within Forensic Notes as an attachment to a note.

This allows both the note and attachment to be Digitally Signed and Time Stamped by an Independent 3^rd Party Timestamping Authority (TSA).

The Date, Time and Authenticity of the I-9 Form can then be confirmed and validated using the Forensic Notes Validation Tool.

This is accomplished by simply dragging and dropping the files onto the validation tool webpage.

Start organizing your HR Files in Forensic Notes, a Forensic Electronic Document Management Systems (FEDMS).

Be more organized, more compliant, and safe-guard your organization from future lawsuits.

Start a free 7-Day Trial right now.

We offer up-front and clear pricing. If you have any questions, please email support@forensicnotes.com

Are you ready to ensure your organization is creating credible evidence?