Let’s say tomorrow, one of your employees asks to see his or her personnel file. Do you know today whether you would answer “yes” or “no” to this request? Does the employee have a legal right to see the file? What information — if any — can you rightfully keep from him or her? Can the employee take the file from your offices? You need answers to these questions. Without them, you’ll fumble with your pen and stumble with your words while the employee patiently awaits an answer.
The facts: Most state “Right-to-Know” laws require employers to provide employees with access to their personnel records. As society becomes increasingly concerned about the number of files, reports, records, tapes and documents describing the activities of individual citizens, it’s common for employees to ask to see their work-related files.
Right-to-know laws give employees the right to see personnel records. But these laws also prohibit employee access to certain kinds of information, such as:
- Criminal proceedings. Commonly, information relevant to criminal proceedings is strictly protected from review by workers. Some states deny review of information which is included in any investigation of wrong-doing. Some states allow employers to deny workers information pertinent to civil, criminal or grievance procedures.
- Reference letters. Writers of reference letters must know their remarks remain confidential. That’s why many statutes bar employee access to these letters. Similarly, some statutes prohibit an employee from seeing evaluations co-workers have made concerning his or her performance.
- A few states do not limit privacy protection to reference letters or peer evaluations. Their statutes broadly protect “confidential information” from review.
- Medical conditions. Some states give employees a right to see medical files. Other states limit access. In some states, employers can refuse to release medical information if they believe such knowledge would harm the employee. In such an instance, employers can release the medical information to the employee’s physician.
A few states allow employees to inspect their files once or twice a year. But most laws don’t spell out how often employees can see their records. Generally, these statutes require that employees have “reasonable access” to records. Some states require that the inspection of a file occur during an employee’s free time.
Can employees take files outside the office? No. The statutes of several states expressly affirm the employer’s right to keep personnel records on the employer’s property.
Generally, an employee’s right to see a file includes the right to copy documents in the file.
What happens when an employee denies the validity of an evaluation and demands the document be removed from the file? In regard to disputed records, some state laws provide for initial protests and informal attempts at agreement. If attempts at conciliation fail, most statutes allow employees to include in their files an alternative explanation of the event.
Then in the future, when you disclose the disputed document to a third party (for example, a prospective employer), you must also disclose the alternative explanation.
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What to Do: Find out how your state regulates access to personnel files. Then, organize employee files and allow access to records according to these guidelines:
- Limit information in files to material relevant to legitimate personnel and business decisions.
- Tell employees and applicants how their personnel records will be used.
- Give employees access to their files.
- Require employees to submit signed request forms to inspect files.
- Allow employees to correct inaccurate information.
- Have employees sign statements that they have reviewed their records. Statements include: time and date of the review, a list of copied documents, a summary of alterations made to the file.
- Require employee consent before releasing information to third parties.
- Limit released information to factual statements. Example: Jack was employed as a machinist at XYZ Company from January of 2008 to June of 2010.