Employment of foreign nationals: What belongs in the personnel file?

Imagine a former employee, through their lawyer, demanding full access to their personnel file under Article 15 of the GDPR . As you leaf through the thick folder, you come across handwritten notes from an old feedback session, subjective assessments of their teamwork skills, or even medical details. At this moment, many employers realize: the personnel file is not a private diary of the HR department , but a legal document that can be used against you in a serious situation. While the general principle is "data minimization," a dangerous trap awaits when employing international talent. Here, the law is unforgiving of loopholes. Those who disregard the strict documentation requirements of the Residence Act risk far more than just a fine .

Between transparency obligations and data minimization

In our daily practice advising employers, we often encounter two extremes: either personnel files are hopelessly overloaded , or they are so incomplete that they wouldn't withstand an official audit . As a general rule, employees have comprehensive rights of access to their personnel files. This ranges from the classic right under Section 83 of the German Works Constitution Act (BetrVG) to the strict information requirements of the GDPR. The Federal Labor Court clarified years ago that, in case of doubt, everything physically or digitally contained in the file must be disclosed. Therefore, a conscious reduction to the essentials is advisable. Everything relating to personal and professional circumstances—from the employment contract and warnings to formal references—belongs in the file. Subjective feelings, case files from ongoing proceedings, or information from private life, on the other hand, have no place there.

The special role of the employment of foreigners according to § 4a of the Residence Act

A critical exception to the general restraint in record-keeping is the employment of staff from third countries. Here, immigration law takes precedence over labor law, drastically tightening documentation requirements . According to Section 4a Paragraph 5 of the German Residence Act (AufenthG), employers are legally obligated to retain a copy of the residence permit or certificate of temporary residence (Duldung) in electronic or paper form for the entire duration of the employment. It is insufficient to simply request to see the document once during onboarding. You must ensure that the residence permit explicitly authorizes the employee to perform the specific job. These documents are a mandatory component of the personnel file , as they serve as your sole exonerating evidence against accusations of illegal employment during a company audit by customs or immigration authorities.

Deadline management as a protective shield

The art of record-keeping lies not only in filing, but above all in timely deletion. The principle of data minimization requires that data be stored only as long as it is necessary. While time sheets can be disposed of after two years according to Section 16 of the German Working Time Act (ArbZG) , and maternity protection documents also lose their relevance after two years, you must be particularly vigilant with foreign skilled workers. The obligation to retain their residence permit only ends with the termination of their employment . At the same time, employers must keep track of visa expiration dates . Anyone who loses track here and forgets to include renewed permits in the file is committing an administrative offense. A well-structured file, promptly purged of old warnings, but complete with all relevant residence permit documentation, is your best protection against legal consequences.

Conclusion: Focus on what is legally necessary.

The personnel file should never be a collection of everything that arises during the course of an employment relationship. As a lawyer, I advise you to maintain a strict separation: Keep the file lean when it comes to internal feedback forms and informal notes to minimize your disclosure obligations and liability risks. However, be uncompromisingly precise regarding the legally required documentation. In particular, the requirements of Section 4a of the German Residence Act (AufenthG) are not a mere formality , but rather the basis for the legally compliant employment of international teams. Those who document consistently and simultaneously eliminate unnecessary clutter create the necessary legal certainty for a modern company.