When a "Simple" Personnel File Request Is Not So Simple

09 September 2013 Labor & Employment Law Perspectives Blog

A request for a personnel file may, at first blush, seem like a relatively simple inquiry. But, more and more often, an employer’s obligations in response to that request are dictated by state law. In fact, most states have some type of law that governs various aspects of such requests – more than just whether access to the file is required.

Some state law requirements dictate the time for a response, the form of the request, and conditions governing access – such as whether the employee has a right to merely “inspect” the file or a right to make or have a copy. Notably, some states define what is required to be in the personnel file. Using the example of Connecticut law, a personnel file is defined as papers, documents and reports, including electronic mail and facsimiles, pertaining to a particular employee that are used or have been used by an employer to determine such employee’s eligibility for employment, promotion, additional compensation, transfer, termination, disciplinary or other adverse personnel action including employee evaluations or reports relating to such employee’s character, credit and work habits.

The broad definition of what must be in a personnel file is not limited to Connecticut; other states such as Massachusetts have similar definitions. This means a request to provide the personnel file may also require checking to ensure compliance with the statute, even if it means turning over items you might normally exclude from a personnel file, such as investigation documents.

Sticking with our example of Connecticut law, in addition to dictating contents of the personnel file, that state requires an employee (or former employee) be permitted to review the personnel file (with some exclusions) within a reasonable time. Other particular requirements of the statute include items such as:

  • Allowing inspections to take place at a location at or near the employee’s place of employment.
  • Allowing a copy to be made of the file, although the individual is not permitted to take documents away from the site of inspection, and a company official may be present during the inspection.
  • If the individual disagrees with information in the file he/she may have it removed or changed if the company agrees OR the individual may file a statement in the personnel file explaining his or her position.

The following types of documents Connecticut does NOT consider to be personnel file documents include: references from third parties; stock option or management bonus plan records; materials used by the employer to plan future operation; security files: documents or collections of information relating to investigations of losses, misconduct or suspected crimes, and investigative information maintained pursuant to government requirements, provided such memoranda, documents, or information are maintained separately and not used to determine an employee’s eligibility for employment, promotion, additional compensation, transfer, termination, disciplinary or other adverse personnel action; and documents prepared for civil, criminal, or grievance proceedings.

With virtually every state having different standards governing personnel file access and employer obligations in response thereto, human resource personnel should be familiar with the various parameters governing file access in the states where an employer operates. In the event of uncertain, employers would be wise to consult with legal counsel on personnel file access requests to ensure they are meeting their state-by-state obligations.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services

Insights

The DOL Tries to Say Goodbye—And Seriously, We Mean It—to the 80/20 Rule for Tipped Employees
21 October 2019
Labor & Employment Law Perspectives
To Stalk or Not to Stalk . . . That Is the Question – Using Social Media for Applicant Review
21 October 2019
Labor & Employment Law Perspectives
New Patent Subject Matter Eligibility Updates Seeks Examination Predictability
21 October 2019
Legal News: Intellectual Property
Cryptocurrency in China is like BIG BROTHER in 1984!
20 October 2019
Internet, IT & e-Discovery Blog
PATH Summit 2019
18-20 December 2019
Arlington, VA
MedTech Impact Expo & Conference
13-15 December 2019
Las Vegas, NV
Review of 2020 Medicare Changes for Telehealth
11 December 2019
Member Call
BRG Healthcare Leadership Conference
06 December 2019
Washington, D.C.