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HR professionals should carefully review applicable state laws
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If current or former employees request to see their personnel files, what information is an employer required to provide? Is there anything that must remain confidential and out of view from an employee?
Here's what employment attorneys told SHRM Online.
The requirements vary by state but, as a general rule, employees will likely need to be granted access to their job applications, documents reflecting compensation, job descriptions, performance evaluations, disciplinary records and, if relevant, termination notices, said Rachel Reingold Mandel, an attorney with Ogletree Deakins in Boston.
But there are usually some limitations on what employees are allowed to see, noted Franklin Wolf, an attorney with Fisher Phillips in Chicago. In Illinois, for example, an employer is not required to let a worker view or copy letters from references, among other things.
"As we see with many employment laws, states in the Northeast and on the West Coast, as well as Illinois, have especially employee-friendly personnel-file laws, but employee-friendly laws are becoming increasingly common around the country," Mandel said. Employers should stay abreast of changes as they are enacted, since state legislatures frequently update rules governing personnel file access.
Employers should be familiar with the laws in each place they operate. In some states, an employee's request to see his or her file must be in writing: California, Connecticut, Maine, Massachusetts, Michigan, Minnesota and Rhode Island. In other states, the employer may create a policy requiring written requests: Delaware, Illinois, Pennsylvania and Wisconsin.
State laws also vary as to whether employees are allowed to make copies of their records and who must bear the cost of making copies. In Colorado, for example, employees may request copies of their records and employers may require workers to pay reasonable expenses. Pennsylvania employers, however, don't have to allow copying, but employees are permitted to take notes when viewing their files.
Some state laws set a minimum number of times individuals must be allowed to inspect their files. For instance, in Colorado, current employees are allowed to view their files at least once a year and former employees may take a look at their files once after termination. Minnesota employees can inspect their files once every six months, but former employees can only do so one time within the first year after separation.
"Another important aspect of the various state laws concerning personnel files is the compliance period for the employer," Wolf said. These rules vary from state to state, and time extensions may or may not be permitted. In Illinois, for example, the employer must comply with a request to review a personnel file within seven days, and employers are permitted a single seven-day extension beyond that initial compliance period. Massachusetts employers must make files available within five business days of the request.
Many states now require employers to notify workers when negative information is placed in their files, Mandel said, noting that some states require the notification to be accompanied by a copy of the negative document.
In addition, some states allow employees to place responsive documents in their files to rebut negative documentation.
Personnel files generally contain documents the employee has already reviewed, such as job applications, performance evaluations, and transfer and promotion forms. However, files may also hold information employees haven't read, such as references from previous jobs and notes on criminal or workplace violation investigations. Some of those items might be off limits to employees.
"In the normal course of employment, employees are not entitled to see personnel records belonging to another employee or reflecting confidential information regarding another employee," Mandel said. In addition, confidential management communications, such as those reflecting management discussions about performance or investigations, will generally be considered off-limits when an employee makes a personnel file request.
Employers should consider keeping separate files for information employees are allowed to inspect and information they are not entitled to see.
[SHRM members-only HR Q&A: Is our company legally obligated to allow current or former employees to review or copy their personnel files?]
It is often useful for HR professionals to develop a spreadsheet that reflects the relevant state requirements when responding to a personnel file request or handling the placement of negative information in an employee's file, Mandel said. Even though state requirements may cause HR departments to be wary of adding documentation to personnel files, it is important to continue to record performance evaluations—both good and bad—and any employment-related discussions, she said.
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