United States: Colorado's New Personnel File Law Goes Into Effect In January: Steps You Can Take Now To Prepare

On June 10, 2016, Colorado Governor Hickenlooper signed House Bill 16-1432. The new law, which becomes effective on January 1, 2017, provides current and former employees of private employers with the right to inspect their personnel files. While many employers already allow employees to inspect their personnel files, prior to passage of this law, employees did not have any legal right to do so. Below we provide information about this new law and recommend steps that employers should take to prepare for it.

Summary of the New Law

The new law applies to most private sector employees only. (Public employees already have access to their personnel files pursuant to the Colorado Open Records Act.) The law does not apply to financial institutions chartered and supervised under state or federal law, including banks, trust companies, savings institutions, and credit unions.

Pursuant to the new law, upon request, employers must allow current employees to inspect and obtain a copy of their personnel file at a time convenient to the employer and employee. Former employees may make one inspection of their personnel file after termination.

Employers may require that a current or former employee access his or her personnel file in the presence of a person responsible for managing personnel data on behalf of the employer or another employee designated by the employer. Additionally, employers may require a current or former employee to pay reasonable copy costs.

The law does not create a right of action for an employee who believes his or her employer violated this new law. Additionally, the law does not create any requirement that an employer maintain a personnel file for each of its employees nor does it create any specific retention requirements.

What Is A "Personnel File?"

The law defines "personnel file" as records currently or previously "used to determine the employee's qualifications for employment, promotion, additional compensation, or employment termination or other disciplinary action."

The law specifically notes that the definition of "personnel file" does not include documents that are legally required to be maintained separately from an employee's personnel file; documents regarding confidential reports from the employee's previous employers; documents relating to an active criminal investigation, disciplinary investigation by the employer, or active investigation by a regulatory agency; or information in a document that identifies anyone that made a confidential accusation (as determined by the employer) against the employee requesting a copy of his or her personnel file.

Next Steps

Now is a good time for employers to start thinking about how they will ensure compliance with the new law and its potential implications. We recommend that employers take the following steps:

  • Employers should designate a specific individual to handle personnel file requests and identify this individual in their employee handbook. Managers should also be trained as to whom they should direct requests.
  • Employers should consider auditing their employees' personnel files to ensure that inappropriate documents are not included. Any improper documents should be removed.
  • Employers should also train their Human Resources staff about what documents should and should not be included in their employees' personnel files. For example, any medical information or investigation documents should be maintained in separate files.
  • Remind managers and Human Resources staff about good performance documentation skills. While it is always a good practice to document as if the world will see it, now employees (and their potential legal counsel) will have full access to these documents upon request.

As always, your Lewis Brisbois attorneys are available to assist you with any questions about compliance with this new law.

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.

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Meryl Mills
 
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