Employee access to personnel files

Massachusetts recently amended its personnel-record law torequire that an employer notify an employee within ten days of placing any information that could negatively affect theemployee’s employment in his or her personnel file.1 Not onlydoes this development place a new affirmative duty on Mas-sachusetts employers, but it also demonstrates the diverse obliga-tions imposed by the personnel-record laws of several states.Congress has not enacted a general law about employee access topersonnel files. State laws on the subject resemble snowflakes;almost every state’s version, if one exists, is unique. From thepool of potential duties, rights, and procedures, state legislatureshave crafted statutes to suit their particular policy goals. Some ofthese laws apply to all employees. Others cover only publicemployees or even a particular subset of them. Some provideremedies through state administrative agencies. Others allowemployees to bring civil actions. Illinois and Minnesota limit thenumber of permissible inspections per year.2 Wisconsin detailsthe exact process for when, where, and how the inspectionshould occur.3

Personnel files hold sensitive records, such as letters of recom-mendation, documentation of internal investigations, and privatedata about other individuals. Employers understandably want toprotect these records. Employers want to maintain their ability to solicit candid evaluations of employees and make intelligentstaffing decisions.4 Yet, because information contained in thosefiles substantially affects employment decisions, employees wantaccess to their files. Access helps minimize the possibility thatdecisions about discipline or advancement are based on erroneous

©2011 Wiley Periodicals, Inc.Published online in Wiley Online Library (wileyonlinelibrary.com). DOI 10.1002/ert.20323

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Employee Access to Personnel Files

William C. Martucci and Russell J. Shankland

State Regulations Update

Employment Relations Today

or arbitrary grounds.5 Balancing the need for confidentiality with employeeinterests presents a difficult burden for employers. The assortment of man-dates set by the different state laws compounds the burden. This updateprovides an overview of personnel-file access laws, describes four areaswhere the laws differ, and presents suggestions for employers trying to com-ply with the laws.

COMMON ELEMENTS OF STATE PERSONNEL-RECORD ACCESS LAWS

Almost every statute requires the employer to allow an employee or a formeremployee to inspect his or her personnel file on request.6 These requests usu-ally must be written.7 Employers often have a set time limit from the requestto allow the inspection. That window ranges from 5 to 45 days.8 Inspectionmust occur at a reasonable time at the employee’s place of employment (orreasonably nearby), and a representative of the employer may supervise.9

The employee can take notes and, less frequently, copy materials in the file.10

If an employee disputes any information, many of the statutes allow theemployee to place a written statement of explanation in the file.11

DIFFERENCES IN STATE PERSONNEL-RECORD ACCESS LAWS

Four areas in which significant differences can be found among the statelaws relating to personnel-record access are (1) notification, (2) employeecoverage, (3) definitions of personnel files, and (4) penalties for noncompli-ance. These areas are detailed below.

Notification

Employers and employment attorneys alike will take special note of the newnotification obligation under Massachusetts law. It requires an employer tonotify an employee within ten days of information added to personnel filesthat could have a negative effect on “the employee’s qualification for employ-ment, promotion, transfer, additional compensation, or the possibility thatthe employee will be subject to disciplinary action.”12 The vast majority of personnel-record laws impose no duty to notify. The right lies in theemployee to request an inspection.

Although the Massachusetts law may represent the broadest notificationrequirement because it covers both public and private employees, it does notserve as the only statutorily imposed duty to notify. What follows are exam-ples of similar mandates from other states:

❏ In Alabama, a state employer must provide its employee with a copy ofany document pertaining to disciplinary actions within ten days of

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adding it to the personnel file.13 If the employer fails to notify theemployee within ten days, the employer must remove the documentationand may not use it in any further proceedings.14

❏ In Kentucky, a state employer must notify an employee when any docu-ments relating to misconduct or failure to perform duties are added tothe employee’s file.15 At that time, an employee also must be informed ofhis or her right to prepare a written response to the documents and havethat response placed in the file.16

❏ In North Dakota, a document addressing a public employee’s characteror performance may not be placed in the personnel file without theopportunity for him or her to review it. The employee must acknowledgereview by signing the document.17 Likewise, a fire department employeein Louisiana must read and sign any comment adverse to his or herinterest before it is placed in the personnel file.18 After signing the com-ment, the employee has 30 days to prepare a response to be included inthe file.19

❏ Finally, the District of Columbia has a notification obligation that worksinversely to those of Massachusetts, Alabama, Kentucky, North Dakota,and Louisiana. In the District of Columbia, a public employer mustnotify an employee whenever it seeks to remove any information fromthe personnel file.20 The employer must also provide the employee withan opportunity to be heard on the issue.21

Employee Coverage

Of states that provide for access to personnel files, approximately half grantthe right to all employees—private and public. The other half allows onlysome or all public employees. Where no specific personnel-file law exists,public employees often may access their records via public records laws.22

For example, under Virginia’s Freedom of Information Act, records exemptfrom disclosure to the general public may be inspected by the person who is the subject of the record.23 Many states provide limited access to specificpublic professions. In New York, public officers, including police officers,firefighters, and paramedics, may inspect all personnel records used to eval-uate their performance.24 North Carolina has separate access provisions foremployees of the state, the county, the city, school districts, community col-leges, and public hospitals.25

Definitions of Personnel Files

What constitutes the personnel file varies from state to state. Massachusettsand Michigan both broadly define an employee’s personnel file. It includes


any “record kept by an employer that identifies an employee, to the extentthat the record is used or has been used, or may affect or be used relative tothat employee’s qualification for employment, promotion, transfer, addi-tional compensation or disciplinary action.”26 Some statutes specifically listwhat material a personnel record shall contain. In Arizona, the recordincludes job applications, performance appraisal reports, corrective actionplans, and the like.27

Other states choose to define the file more by what it should not encom-pass. Colorado describes the file expansively as information maintainedbecause of the employer-employee relationship but restricts its applicationby excluding job applications, employment agreements, expense allowances,and performance ratings.28 The most common exclusions include letters ofreference, details about criminal investigations, testing documents, and pri-vate information about other persons.29 Some statutes also exclude informa-tion about staff planning (e.g., reorganization and downsizing).30

Penalties for Noncompliance

Most states vest the power to enforce personnel-record access laws in stateagencies. For example, the Connecticut Department of Labor may subpoenapersonnel files from an employer against whom a complaint has beenfiled.31 In Massachusetts, the attorney general prosecutes an employee’sright to access.32

Other states allow employees to pursue independent civil actions againstuncooperative employers. In Delaware, an employee can sue an employerthat refuses to allow an inspection of the personnel file and can collect anaward of between $1,000 and $5,000 for each violation.33 In Michigan, thecircuit court may award an employee actual damages for a normal violationand more, including attorney’s fees, for a willful violation.34 Illinois providesfor an administrative remedy, a civil suit, or even a petty criminal penaltyfor an employer who violates Illinois’s Personnel Record Review Act.35

SUGGESTIONS FOR ENSURING COMPLIANCE

Because the laws vary from state to state, it is essential stay up to date aboutthe exact requirements for every state in which the enterprise is anemployer. Special attention to the prescribed procedures for requesting andconducting inspections, as well as time limits for responding to employeerequests, is warranted. What follows are other more specific suggestions forcoping with the varied legal requirements related to employee access to per-sonnel records.


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❏ Use the relevant statutory definition of “personnel file” as a guide fordetermining whether particular documents should be produced forinspection. If the statute identifies exceptions, such as letters of referenceor testing documents, remove those from the file prior to inspection.

❏ Establish an official company procedure for employees to follow whenrequesting inspections, including requiring written inspection requestsand specifying where and when inspections should occur. Make suremanagers are familiar with this procedure.

❏ If allowed under state law, have a representative of the employer in theroom while the employee inspects the file.

❏ Be accommodating to employees who wish to contest information intheir personnel records. Investigate whether the information should beremoved or corrected. If an agreement cannot be reached with anemployee, allow him or her to submit a written statement for inclusionin the file.

CONCLUSION

Employers must be able to retain personnel files. They must be able to for-mally evaluate the performance of their employees. They must be able tocollect personal data and record disciplinary actions. Because many statesallow employees to inspect their personnel files, employers must alsodevelop adequate policies that protect sensitive information while facilitat-ing employee access. In crafting these policies, employers should carefullyevaluate the duties, rights, and procedures established by different state per-sonnel-record access laws.

Notes

1. Mass. Gen. Laws Ann. Ch. 149 § 52C.2. 820 Ill. Comp. Stat. Ann. 40/2 (employer shall grant at least two inspection requests per calendar

year); Minn. Stat. Ann. § 181.961 (employer not required to allow review if done in previous sixmonths).

3. Wis. Stat. Ann. § 103.13(2).4. See 65 A.L.R. 4th 619.5. See 65 A.L.R. 4th 619.6. See, e.g., Alaska Stat. § 23.10.430(a); 820 Ill. Comp. Stat. Ann. 40/2; Mass. Gen. Laws Ann. Ch. 149 § 52C.7. See, e.g., Conn. Gen. Stat. § 31-128b; 64 Del. Laws, c. 473, § 1.8. Compare Mass. Gen. Laws Ann. Ch. 149 § 52C (opportunity to review must come within five busi-

ness days of request) with Or. Rev. Stat. § 652.750(2).9. See, e.g., Minn. Stat. Ann. § 181.96 (copy must be made available for reviewing during employer’s

normal hours of operation at employee’s place of employment or other reasonably nearby location);


Pa. Stat. § 1323 (inspection may be in the presence of an official designated by employer); R.I. Gen.Laws § 28-6.4-1 (employer must permit inspection at reasonable time other than employee’s workhours).

10. See, e.g., Mich. Comp. Law § 423.504; Pa. Stat. § 1323 (employee can take notes but cannot makecopies); Minn. Stat. Ann. § 181.961 (employer must provide copy of requested file free of charge);Nev. Rev. Stat. § 613.075 (employer must provide copy of requested file but may charge actual cost ofreproduction); 820 Ill. Comp. Stat. Ann. 40/2 (if employee is unable to review records at employmentlocation, employer must provide copy).

11. See, e.g., N.H. Rev. Stat. Ann. § 275:56 (employee can submit written explanation and evidence);Wash. Rev. Code § 49.12.250 (employee retains the right of rebuttal or correction of a period not toexceed two years).

12. Mass. Gen. Laws Ann. Ch. 149 § 52C.13. Ala. Code § 36-26-27.1.14. Ibid.15. Ky. Rev. Stat. Ann. § 18A.020.16. Ibid.17. N.D. Cent. Code § 54-06-21.18. La. Rev. Stat. Ann. § 33:2183(A).19. Ibid.20. D.C. Code § 1-631.05.21. Ibid.22. See, e.g., Haw. Rev. Stat. § 92F-21; Ind. Code Ann. § 5-14-3 (public employer must make all personnel-

file information available to affected employee); and Md. Code. Ann. § 10-616(i)(2) (public-recordscustodian must allow employee or public official supervising employee to access personnel records).

23. Va. Code Ann. § 22.1-312.24. N.Y. Civ. Rights Law § 50-a(1).25. N.C. Gen. Stat. §§ 126-22, 153A-98, 160A-168, 115C-321, 115D-29, and 131E-257.26. Mass. Gen. Laws Ann. Ch. 149 § 52C; Mich. Comp. Law § 423.501.27. Ariz. Rev. Stat. Ann. § R2-5-105.28. Colo. Rev. Stat. § 24-72-202.29. See, e.g., 820 Ill. Comp. Stat. Ann. 40/2; Mich. Comp. Law § 423.501.30. See Minn. Stat. Ann. § 181.960.31. Conn. Gen. Stat. § 31-69.32. Mass. Gen. Laws Ann. Ch. 149 § 52C33. Del. Code Ann. tit. 19 § 735.34. Mich. Comp. Law § 423.511.35. 820 Ill. Comp. Stat. Ann. 40/12(e) (“[A]ny employer or his agent who violates the provisions of this

Act is guilty of a petty offense.”).


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William C. Martucci is a partner with Shook, Hardy & Bacon LLP,where he serves as the practice leader of the National Employment Liti-gation and Policy Practice. He is included in The Best Lawyers inAmerica for employment litigation and in Euromoney’s Guide to LeadingU.S. Labor & Employment Lawyers. He may be contacted at [email protected]. Russell J. Shankland practices with Shook, Hardy & Bacon,LLP, in the National Employment Litigation and Policy Practice. He maybe contacted at [email protected].

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Employee access to personnel files