Can My Employee Demand To See His Personnel File?!
By Attorneys of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Employment Policies and Procedures on Thursday, February 15, 2018.
It Depends On What State You Are In!!
State laws set the rules governing employers’ legal obligations to allow employees and former employees, see their own personnel files. Therefore, employers should have a firm grasp on the legal rules for employee access to their own personnel files. Thirty-five states and the District of Columbia have laws governing employee access to their own employer files. Some states have none!
WHAT CAN EMPLOYEES SEE?: Personnel files usually include documents such as employment applications, offers of employment, pay records, performance reviews, noncompetition agreements, disciplinary and discharge records, handbook acknowledgement forms, and other similar work-related documents. Some state laws, such as that of Minnesota, spell out in considerable detail what documents an employee can and cannot legally demand to see.
In some states, employees have absolutely no legal rights to their files, as the files are deemed the property of the employer. But in other states (Massachusetts, for example), any piece of paper that you would review in order to make a decision about the employee’s employment is considered part of the personnel file, and the employee must be granted access to it.
It is very important for employers to know what must be produced before responding to a demand to see a personnel file. Documents that meet a particular state’s definition must be produced regardless of where they are kept by the employer. In other words, a “personnel file” subject to inspection may include documents maintained outside of what an employer may designate as its employee’s personnel file. Conversely, many employers’ “personnel files” contain all sorts of documents that need not be produced under governing state law or, in some cases, should not even be kept in such files.
Omitting mandated documents, or including documents that should not have been comingled with personnel files, can have serious legal consequences. For instance, in Minnesota, an employer’s failure to produce a document that should have been included in its statute’s definition of “personnel file” documents may result in the employer being banned from using the document in any subsequent legal proceedings to defend itself! Similarly, producing medical or highly personal documents that are comingled with other documents in a personnel file might unwittingly draw claims of an ADA violation or invasion of privacy.
WHEN CAN INSPECTIONS TAKE PLACE?: Most states require inspections by employees to take place under reasonable rules and during regular business hours. Some states, such as Illinois and Wisconsin, mandate that the inspection take place within a specified number of days of the employee’s request to review his/her file. Other states, such as Pennsylvania, allow employers to require that inspections take place only within employees’ free time.
Some states limit the frequency with which employees may see their personnel files. Rhode Island allows inspections no more than three times in a calendar year. Connecticut and Illinois permit inspections twice in a calendar year. Pennsylvania permits personnel file inspections only once a year.
CONFIDENTIAL FILE SEPARATE FROM PERSONNEL FILE: A “confidential file” (separate from the personnel file) should be maintained by the employer and include such items as medical information including FMLA and workers’ compensation records (because the Americans with Disabilities Act requires that any medical records pertaining to employees be kept in separate confidential medical files); garnishment orders; I-9 documents; EEO documents; and background and other investigation notes.
ILLINOIS: Under Illinois law (820 ILCS 40/2), only employers with five or more employees are covered by the law governing personnel files.
1. An employer can refuse to permit ex-employees to review their file if they are requesting it over one year after separation from employment.
2. Current employees are entitled to see their personnel files at least twice a year.
3. Employers can insist that the employee put the request in writing.
4. The employee is entitled to see documents used in determining that employee’s qualifications for employment, promotion, transfer, additional compensation, discharge, or disciplinary action.
5. The employer must comply with the employee’s request to review their personnel file within seven (7) working days after the employee makes the request. If the employer can reasonably show that such a deadline cannot be met, the employer is allowed another seven (7) days to comply.
6. If an employer violates the law, the employee can file a complaint with the Illinois Department of Labor.
IOWA: Section 91B.1 of the Iowa Code allows an employee to have access to his or her employee file to review and/or have copies made of the file. The personnel file shall include, but not be limited to any performance evaluations, disciplining records and other information concerning the employer-employee relationship (very broadly defined). However, the employee cannot access any references provided to the employer. Iowa also restricts when a person can access his or her file. In Iowa, an employer and employee must agree to the time and place of the inspection and a representative of the employer may be present at all times when the employee is reviewing the file. The Iowa employer may also charge a reasonable fee for any requested copies of the file. The statute defines a “reasonable fee” as an amount equivalent to an amount charged per page for copies made by a commercial copying business.”
MINNESOTA: Minnesota employers are required to provide employees with access to their personnel record upon written request. A current Minnesota employee is entitled to review his or her personnel record once every six months. A former employee may either request to review his or her personnel file once a year or obtain a copy of his or her personnel file free of charge once a year for as long as the record is maintained. (See Minnesota Statutes 181.961)
If the personnel record is located in Minnesota, the employer must comply with a written request no later than seven working days after receipt of the request, or no later than 14 working days after receipt of the request if the personnel record is located outside of Minnesota.
- An employer may require that inspection of a personnel file take place outside the employee’s working hours and at the workplace or some nearby location.
- Employers may not charge a fee for copying.
- Minnesota Statutes 181.960, subd. 4 defines “personnel record(s)” with considerable specificity; however, it also contains a detailed list of things that need not be produced.
- Certain references, investigative documents, testing results, supervisor notes maintained solely by the author, and co-worker statements are among the documents that may fall outside personnel records and thus, be excluded.
- If an employee disputes something in her file, it may be revised by mutual agreement or the employee must be permitted to include a written rebuttal of up to 5 pages, as part of the file along with the disputed provision.
- Information omitted from an employer’s response should have been produced in response to a proper personnel record request, may not be used by the employer in an administrative, judicial, or quasi-judicial proceeding unless its omission was unintentional.
WISCONSIN: Under Section 103.13 of the Wisconsin state law, a past or present employee has the right to view and copy their personnel records at least two times each calendar year. Upon request, the employer then has seven (7) working days to provide the employee with an opportunity to inspect the documents. The employer may ask that an employee make these requests in writing.
The right to inspect “personnel documents” is limited to documents which are used, or which have been used, to determine an employee’s qualifications for employment, promotion, transfer, additional compensation, termination or other disciplinary action, and medical records. However, the right to inspect does not apply to:
- Records relating to the investigation of possible criminal offenses committed by that employee;
- Letters of reference for that employee;
- Any portion of a test document, except that the employee may see a cumulative total test score for either a section of the test document or for the entire document;
- Materials used for staff management planning (projections);
- Information of a personal nature about a person other than the employee if disclosure would constitute an invasion of that other person’s privacy;
- Records that are not kept; or
- Records relevant to any other pending claim between the employer and the employee that may be discovered in a judicial proceeding.
An employer who violates this provision is subject to a fine of not less than $10 nor more than $100 for each violation, and each day of refusal or failure to comply is a separate violation. Employers are also prohibited from discriminating against employees for exercising their right to inspect.
CONCLUSION: If one of your employees or former employees requests a copy of their personnel file, do not say “No” without checking your state law to see what it dictates. Yes, the personnel file belongs to the employer, but the employee may have a legal right to inspect it and/or demand a copy. Failing to comply can result in fines, lawsuits, and more. Typically, individuals assert these rights on advice of (or through) legal counsel, so such demands are not to be treated lightly. Each state is different. So check each part of the detailed laws which exist in many (but not all!) states.
For assistance with evaluating or responding to a request for a personnel file, contact the experienced employment attorneys of Wessels Sherman Joerg Liszka Laverty Seneczko, at:
- In Illinois: Attorney Nancy E. Joerg – by phone, 630-377-1554, or email at firstname.lastname@example.org.
- In Minnesota: Attorney James B. Sherman by phone, 952-746-1700, or email at email@example.com
- In Wisconsin: Attorney Alan E. Seneczko by phone, 262-560-9696, or email at firstname.lastname@example.org
- In Iowa: Attorney Joseph Laverty by phone, 563-333-9102, or email at email@example.com
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