Laws Regarding Access to Employee Files

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No federal law requires private sector employers to permit current or former employees access to their personnel files. Typically, personnel files of private sector employees are considered the employer’s property, and some companies use that rationale to limit access to employee files. Federal and state employees — public sector workers — can gain access to their official personnel records.

Personnel Files

  • Employment files — sometimes referred to as an employee’s personnel file — contain documents such as the employee’s initial application for employment, emergency contact information, employment eligibility forms, performance appraisals, disciplinary and attendance records and supervisor and manager notes about performance, training and employment actions. Examples of employment actions are promotions and terminations. In some cases, the human resources department maintains an official employment file, and the employee’s supervisor or manager maintains a departmental file. Although both files should contain pertinent information, the contents may differ slightly. For instance, a departmental file may not contain copies of all paperwork and documentation an employee completes on his first day on the job, such as policy acknowledgments and W-2 forms.

Reason for Access

  • Current employees ask to review their files to ensure the human resources department is maintaining accurate records concerning their employment. If the company conducts annual performance evaluations, copies of the appraisal forms for each year the employee has been employed should be in the personnel file. Likewise, attendance records should accurately reflect employee absences, whether due to sickness, vacation or leaves of absence. Former employees often request files to obtain copies of documents they can use in their search for future employment. For instance, if a former employee’s file contains records pertaining to performance and accomplishments, this information can be helpful in reconstructing a resume or preparing a list of job duties to share during interviews with prospective employers. Former employees may also request copies of their employment file to use in filing a complaint against an employer.

Employer Policy

  • Many employers have workplace policies concerning the release of employee records. Workplace policies vary according to the types of records available for employee inspection and copying, and some companies designate nonworking hours as the only time during which employees can review personnel records. Employers that have policies on this subject generally devote a section within the employee handbook on how to access records. A well-written policy outlines the steps necessary to review records, what types of records employees have access to, when employees can view their records and any charges for photocopying documents contained in an employee’s personnel file.

Employer Obligation

  • Under federal law, private sector employers do not have to provide copies of employment files to current or former employees. The decision to release files is based on company policy and, in some cases, state law governing access to personnel files. Many employers see the benefit of complying with employee requests, however. Denying access to employment files can only raise questions the employer may not want to answer. If employers maintain personnel files that contain accurate information that has been previously released to employees, there should be no question as to whether the information can be released after the employee leaves the company. In good faith, many employers provide employee access to personnel files. This practice demonstrates transparency about employment policies and records.

    The laws for access to federal employee access to employment records are part of the Federal Privacy Act of 1974; the U.S. Office of Personnel Management is the agency generally responsible for federal employee personnel records. Individual states handle employee requests for access to personnel records.

State Laws

  • Some states have laws that permit employee access to personnel files. Other states are silent on whether current and former employees can review or photocopy personnel materials. In most cases, employees — current or former — who have been involved in workplace investigations cannot view records concerning investigations. These records should not be maintained in the employment file anyway. They are to remain in the custody of the human resources department and only human resources staff responsible for the investigation should have access to investigative materials.

Limited Access

  • States that have laws about employee access to personnel files may require employees to submit a written request, and some laws allow employers to limit access to certain materials. California law, for example, requires employers to allow current and former employees’ access to their files within 21 days of receiving an employee request. Employers who fail to comply with California state law on this matter are subject to penalties, fines and civil suit judgments for refusing access to employee files. Missouri, on the other hand, does not have a state law that mandates access to an employee’s personnel file.

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