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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.
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[Creating
HR Policies or Employee Handbook?]
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.
Subscribers to the
Personnel Policy Manual and HR Policy Answers on CD can find more
information on on personnel record access laws in Personnel Records,
Chapter 901, notes 9 and 17.
If you don't have the manual, but would like to order a trial review, go
to:
http://www.ppspublishers.com/policymanual.htm Or just give us a call
toll-free at 1-800-437-3735.
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Personnel
Policy Service, Inc.
