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Q. Do we have to allow our employees
(current and former) to look at and copy their
personnel records?
A. Personnel records are the property of
the employer. Accordingly, an organization generally has discretion
over whether to give employees access to their personnel files,
unless a state law or a court or agency requires access to these
files. Federal law does not require employers to give employees
access to personnel records.
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Many organizations allow current
employees to inspect and even copy their personnel records as a
goodwill gesture. This openness may lessen employees’ mistrust and
concerns about the information in the files. Since all files should
contain only job-related information, their content should not
surprise the employee or create a basis for a legal claim.
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Approximately 20 states (including
California, Illinois, and Massachusetts) require employers to give
employees, and sometimes former employees, access to their personnel
records. These laws generally allow employees to inspect their
personnel files a limited number of times a year. Typically, some
files are excluded from inspection, such as records pertaining to
future promotion, third-party references, criminal investigations,
and other sensitive information. In addition, state laws usually
allow employers to require written requests for access to files.
Some states also require employers to allow employees to copy their
files.
A few of the states with
personnel
records access laws also give former employees the right to inspect
their personnel files. For example, in Illinois, former employees
can have access to and copy their file for up to a year after
termination. Massachusetts has a similar law but does not limit the
access to any specific time after termination. Many employers do not
want to give access to former employees because they are concerned
that these files may be used to support a legal claim against them.
For this reason, employment law experts advise against giving access
to former employees unless required by law.
Employees or former employees who
file legal claims against an employer also may get access to their
personnel records, and even other employees’ files, if required by a
court or agency. 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.
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Personnel
Policy Service, Inc.
