Karina B. Sterman, Esq., is a partner in Greenberg Glusker’s litigation and employment law groups.
In today’s hybrid workplaces, where conversations unfold across Slack threads and performance feedback arrives via email, personnel records are no longer confined to filing cabinets or even designated HRIS platforms.
Yet too many employers still treat personnel files as static collections of paper documents and forms, ignoring the vast — and often legally relevant — trail left in digital formats.
This oversight isn’t just an administrative gap; it’s a compliance risk. California law, for example, gives employees the right to inspect or obtain copies of their personnel records upon request. If your HR team can’t produce key performance-related documents because they lived in a deleted email account or were wiped along with a departing employee’s laptop, your organization could face serious legal consequences.
As technology continues to redefine how workplaces communicate and document employee behavior, HR professionals must recalibrate their recordkeeping strategies accordingly. Preserving the digital side of the personnel file isn’t just a best practice — it’s fast becoming a legal imperative.
The legal landscape: What counts as a personnel record?
Interpretations of the term “personnel record” can vary. In California, it means any documents used to determine an employee’s qualifications for employment, promotion, additional compensation, termination or disciplinary action.
Importantly, personnel records are not limited to traditional HR documents like formal reviews or reprimands. Courts have recognized that emails, manager notes and even internal chats — if used to evaluate performance or justify employment decisions — can fall within the scope of a personnel record.
Failing to produce these documents upon request (in California, HR has 30 days to do so) is not only a compliance violation; it can damage an employer’s credibility if a dispute escalates into litigation. Incomplete records can create the appearance of disorganization at best — and deliberate concealment at worst.
Digital documents: The new frontier of personnel files
For most modern organizations, day-to-day feedback, coaching and performance management now take place digitally. A manager may never write a formal warning but might regularly send emails citing missed deadlines or poor communication. An employee might request an accommodation via Slack or raise a harassment concern informally via text.
These exchanges are easy to overlook — until they become pivotal in a legal dispute.
And yet, many companies still purge this data when employees leave. It’s common practice to wipe company-issued devices, deactivate email accounts or auto-delete digital messages after a set retention period. While these steps may be sensible from an IT or privacy standpoint, they can result in the unintentional destruction of key evidence — evidence that employers are legally obligated to retain and could benefit from in litigation.
Personnel files vs. legal files: What goes where?
HR teams often maintain two sets of employee-related documentation: the personnel file, which may be accessible to the employee, and the legal or confidential file, which may include sensitive or investigatory information. While not every piece of digital correspondence belongs in the personnel file, many should still be preserved somewhere within your documentation framework.
For example:
- Emails detailing performance concerns should be saved in the personnel file if they were factored into employment decisions.
- Slack messages involving harassment complaints likely belong in a legal or investigatory file.
- Accommodation requests and approvals should be preserved in compliance with the Americans with Disabilities Act and state laws, often in both HR and (if legal counsel was sought) legal records.
The key is that all of these records — regardless of their format or storage location — need to be identified, saved and retained for at least the duration of the applicable statute of limitations, and often longer.
Retention and risk: How long should records be kept?
There’s no one-size-fits-all answer to retention periods, as different types of claims carry different statutes of limitations. However, best practice suggests keeping all potentially relevant employment documents for at least four years following an employee’s separation.
This includes performance documentation, disciplinary records, accommodation communications, internal complaints and exit interviews.
If litigation or a government investigation is pending, a litigation hold must be issued to preserve all relevant documentation — digital or otherwise — until the matter is fully resolved.
Best practices for HR teams in the digital era
To bridge the gap between traditional personnel files and the digital workplace, HR leaders should consider the following steps.
1. Implement a digital records policy. Develop a written policy for identifying and preserving digital communications related to employee performance, conduct and complaints. This policy should involve HR, IT and legal stakeholders.
2. Train managers on what to save. Managers are often the first to receive or generate relevant digital communications. Train them to recognize which emails, chats or notes should be sent to HR for inclusion in the employee’s record.
3. Review before you wipe. Make it standard procedure to audit digital content (email, cloud storage, internal chats) before reassigning or wiping a departing employee’s device. Capture and save any materials that fall under the umbrella of personnel documentation.
4. Segment storage appropriately. Not all employee-related documents should reside in the same file. Create structured folders — one for general HR documentation, another for legal/investigatory content — and restrict access accordingly. Make sure both are retained under consistent retention schedules.
5. Conduct periodic audits. Set a cadence for reviewing your personnel files to ensure that digital materials are being captured. Look for gaps between what’s on paper and what likely exists (or existed) digitally.
Don't Let the digital trail disappear
As employment attorneys, we increasingly see cases where the decisive documents — the ones that could have resolved a dispute early — were never printed, never filed and were often deleted before counsel was ever consulted.
For HR professionals, this is both a cautionary tale and a call to action.
If you’re not already treating digital communications as part of the personnel record, it’s time to update your policies, align with your legal team and build safeguards into your offboarding processes. Because in a dispute, what’s missing from the file can be just as, or even more, important than what’s in it.
