Melick & Porter defends many small and medium sized businesses against claims of employment discrimination. At our initial meeting with the owners, comptrollers, CEOs, or managers of these companies, a question we hear quite often is, “How can we avoid these claims?” One way to minimize these occurrences is to properly maintain employee files.
Under Connecticut law, an “employee” is any individual currently or formerly employed by a company. Conn. Gen. Stat. § 31-128a (1). This law requires the employer to keep a “personnel file” for each employee, which contains any document used to make employment decisions, including promotions, raises, transfers, terminations and disciplinary actions. Conn. Gen. Stat. § 31-128a (3). Because this definition is very broad, it may include notes of a disciplinary meeting, emails discussing an employee’s performance or other documents not traditionally thought of as belonging in a personnel file. We therefore advise our clients to adopt policies and procedures to ensure that these types of documents are included in employees’ files.
But there is more that an employer can do. It may keep an employee medical file, including work related reports from a physician, psychiatrist or psychologist. It may also keep a “security file” related to investigations of losses, misconduct or suspected crimes. Conn. Gen. Stat. § 31-128a (4) and (5). These types of files should be maintained separately from the personnel file, unless the security file results in an adverse employment decision, and then it may be added to the personnel file.
So how does proper maintenance of employee files help employers? To answer this, we first must look at the basics of discrimination claims. An employee claiming that she was unfairly discriminated against in their employment must show:
- She is a member of a protected class due to:
- Age – older than 40;
- Minority race;
- National origin;
- Gender;
- Religion;
- Disability; or
- Pregnancy;
- She is qualified to perform the job;
- She suffered an adverse employment event (termination, demotion, etc.);
- The position was filled by a person outside the protected class (if applicable) and;
- The employer’s reason for the adverse event (if any) was a pretext for discrimination.
Often, an employee’s case is based on circumstantial evidence and requires her to prove the employer’s discriminatory intent by an inference. For those cases, the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) established a burden shifting analysis for circumstantial evidence cases. This McDonnell Douglas burden shifting test requires (1) the plaintiff to establish a prima facie case of discrimination (meeting the above elements); (2) the employer must then articulate, through admissible evidence, a legitimate, nondiscriminatory reason for its actions; and (3) in order to prevail, the plaintiff must prove that the employer's stated reason is a pretext to hide discrimination. McDonnell Douglas Corp., 411 U. S. at 802-04.
It is the second prong of the McDonnell Douglas that is very important to employers. To shift the burden back to the employee, the employer needs support for its nondiscriminatory reasons. This support is often found in well-maintained employee files. “Unless the plaintiff can show that the defendants’ explanations are inherently suspect or can present other direct or circumstantial evidence suggesting that the proffered reasons are not true, then the defendants are entitled to summary judgment.” Perez-Dickson v. Bridgeport, 304 Conn. 483, 518 n. 35 (2012).
For example, in Feliciano v. Autozone, 142 Conn. App. 756 (2013), the plaintiff claimed that she was discriminated against due to a disability, her religion and gender (first prong – burden shifts to employer). Her employer, however, was able to provide evidence, from her employee file, that the plaintiff was involved in a loss prevention investigation. The employer’s regional manager, who had never met the plaintiff, testified that the decision to terminate the plaintiff was based solely on the results of this investigation (second prong – burden shifts to employee). After the plaintiff was unable to rebut the nondiscriminatory reason and meet her burden, the court granted summary judgment in favor of the employer.
Of course, employers should also be careful to make sure that their employee files are accurate and allow the employers a chance to respond to any documents. Accordingly, it is the employer’s burden to keep records of any and all employment decisions. Under Connecticut law, this may include so called “verbal warnings.” Under the law, any record created of a disciplinary action must be provided to the employee no more than one (1) business day after the action is taken. Conn. Gen. Stat. 31-128b(c). If a “verbal warning” is noted in the personnel file, a copy of the document must be provided to the employee.
It should also be noted that employees have certain statutory rights regarding their personnel and medical files. Under Connecticut law, the employee has the right to “remove or correct” any information in the file he/she believes is incorrect, including submission of a written statement which explains his/her position. Conn. Gen. Stat. § 31-128e(a). This includes documented disciplinary action, such as a notice of termination or performance evaluation. Employers “shall include a statement in clear and conspicuous language . . . that the employee may, . . . submit a written statement explaining his or her position.” Conn. Gen. Stat. § 31-128e(b). There is no time limit placed on the employee to submit this rebuttal statement under the law.
In addition, if your company fails to follow the statutes concerning personnel files, the Connecticut Department of Labor may issue a fine of up to five hundred dollars ($500) for a first violation and up to one thousand ($1,000) for any additional violations. Conn. Gen. Stat. § 31-69a(b). In considering the amount of the fine, the Department of Labor considers: (1) the level of assessment necessary to insure immediate and continued compliance; (2) the character and degree of impact of the violation; and (3) any prior violations of such employer. Conn. Gen. Stat. § 31-69a(b).
We understand that a business’s greatest asset is often their employees’ time. It can be burdensome maintaining complete and accurate employee files. But it can be far more burdensome (not to mention expensive) responding to lawsuits. Complete and accurate employee files can reduce litigation expenses.
In either preempting or defending against discrimination claims, our attorneys will work with you to minimize the impact on your business. Should you have any question about these or other employment related issues, please do not hesitate to contact any of our offices.
