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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.