Access to Personnel Files
Copyright © 1999-2006 By Ethan A. Winning
We receive 10 or more email a month asking what the federal and state laws are regarding access to personnel records. In the 15 years since I've been answering questions through columns or online, my research through BNA, CCH, and other sources has shown that there are no federal laws, but as of December 2003 there are 17 states (so far) which have laws or labor codes dictating what the employee can see, copy, and rebut. (A breakdown by state can be found in our subscriber's section.)
Personnel Records - General. I know that there are many HR managers, managers in general, and business owners who would prefer that employees not get a chance to see their personnel files, at least in part because they know that the records -- or lack of documentation -- can be damning. There is also the problem of notes that have been thrown into files which would make any corporate attorney's hair stand on end. Still, since documentation is the key to avoiding trouble, I think that the employee should have access to his or her file, and I've particularly liked the content of California's labor code - until the change on January 1, 2004.
California Labor Code 1198.5 reads, "(a) Every employer shall at reasonable times, and at reasonable intervals as determined by the Labor Commissioner, upon the request of an employee, permit that employee to inspect such personnel files which are used or have been used to determine that employee's qualifications for employment, promotion, additional compensation, or termination or other disciplinary action." Labor Code 432 is an important adjunct to this code: "If an employee or applicant signs any instrument relating to the obtaining or holding of employment, he shall be given a copy of the instrument upon request. (b) Each employer subject to this section shall keep a copy of each employee's personnel file at the place the employee reports to work, or shall make such file available at such place within a reasonable period of time after a request therefor by the employee."
This means that the employee must be given a copy of any document (pertaining to his or her employment) which he or she has signed. What does that do for the employer? Well, it does give the employer (and supervisors and managers) the upper hand when an employee refuses to sign a Consultation or Warning Report or a performance review. If the individual wants a copy, s/he must sign it. Other than that, I strongly believe that the employee should have copies of these documents because they are indeed part of the employment process. (See discussion in Labor Pains and see policy in The Bulletproof Employee Handbook.) Even in states which have no such codes, I have used this policy for these reasons.
States With Codes: As of this date, the following states have no codes regarding access to
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Copyright © 2005 by Ethan A. Winning. All rights reserved.