|
Find out when you have to
give your employees access to their
personnel files. Even if you are not required to provide access by
law,
you may find it good practice to do so.
Q: Do we have to allow our employees (current and former) to look
at and copy their employment records?
A: Personnel records are the property of the employer. Therefore,
you generally have discretion over whether to give employees access
to
their personnel files, unless a state law, court, or other
government
agency requires access. Federal law does not require you to give
employees access.
However, many organizations, as a good will gesture, allow current
employees to see and even copy their records. This openness usually
reduces employee mistrust and concern about the information in their
files. If your files contain only objective and job-related
information, their
contents should not surprise the employee or unnecessarily create
the
basis for a legal claim.
Approximately 20 states (including California, Illinois, and
Michigan)
require you to give employees, and sometimes former employees,
access to their records. These state laws generally allow a limited
number of inspections per year. Typically, some files, like records
pertaining to future promotion, third-party references, criminal
investigations, and other sensitive information, may be excluded
from
inspection. In addition, these laws usually allow you to require
written
requests for access to the files. Some states also give employees
the
right to copy their records.
In addition to allowing current employees access, a few states give
former employees the right to inspect their files. For example, in
Illinois,
former employees can review and copy their file for up to a year
after
termination. Still, many employers are concerned that the
information
may be used to support a legal claim against them and so prefer to
deny
access to former employees. Most employment law experts, also
concerned about the indiscriminate release of information, advise
against
giving former employees access unless required by law.
Employees or former employees who sue their employer can usually get
their personnel records, and even other employees' files, in the
normal
legal discovery process. For example, if a former employee files a
discrimination claim in federal court, the court can order the
employer to
turn over all files related to the former employee and any similarly
situated employees.
So, in establishing your records access policy, you need to address
both
your internal corporate operating philosophy and local legal
requirements. But in doing so, remember that even if you limit
access,
you may still be compelled to disclose the information in a legal
proceeding.
YOU CAN TRUST PPS
Information provided in HR Matters E-Tips is researched and reviewed
by the HR experts at Personnel Policy Service as well as employment
law attorneys. However, it is not intended as legal advice. Readers
are
encouraged to seek appropriate legal or other professional advice. |
Personnel
Policy Service, Inc.
