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HR MATTERS E-TIPS
THIS WEEK'S E-TIP: Employee Access to Personnel Records Q&A
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
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THIS WEEK'S E-TIP: Employee Access to Personnel Records Q&A
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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THIS WEEK'S E-TIP: Employee Access to Personnel
Record Q&A
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.
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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. |
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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
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Information provided in HR Matters E-Tips is researched and reviewed
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law attorneys. However, it is not intended as legal advice. Readers are
encouraged to seek appropriate legal or other professional advice.
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