Thursday, April 21, 2016

Managing Requests for Access to Personnel Records

These days, employee information is stored in many different places.  We’ve got emails, HR files, desktops, desktop folders, employer-owned HR systems, cloud-based HR systems, manager files, health and leave files and investigation files, and more.  So what happens when  employees ask to see their “personnel files”?
Many states have laws that give employees access to their personnel records in a variety of circumstances, including after a termination.  Some of these laws – including the law of the Great State of Minnesota – define what is and is not an accessible personnel record.  Statutory definitions can be quite specific. Some managers’ files and workforce planning information may be excluded from the list of what an employee can see, for example, while attendance and retirement records are included.  SHRM provides a Toolkit that defines personnel records, and it’s always important to check on the requirements of your state’s laws. 
Under federal laws, employers are required to maintain personnel information in specific ways, and these requirements may interact with state laws giving employees access.  Employee health information must be kept separately and securely under federal law, but may well be accessible to an employee as part of his or her personnel record, particularly if tied to leaves or absences.  1-9s and other immigration information must also be kept separately under federal law while being accessible as part of the personnel record.
Employers need to comply with applicable laws and be ready when employees seek access to their personnel records.  Here are suggestions for doing both:
1.         Locate all personnel information.  Unless you are using a single, automated HR system that does it all – recruitment, benefits enrollment, performance management, employee relations, investigations, termination management – you’ve probably got information in lots of places.   If an employee requests access to all the information the law allows, you may need to pull records from various systems and assemble and copy paper files.  Knowing where information is, how to capture it, and how to compile it promptly for employee review will make handling requests much easier. 
2.         Consider non-written requests for access.  In some states, like Rhode Island and Michigan, employers are only required to provide access to personnel records when an employee makes a written request, but may give access (or a copy) in response to an oral request.  Whether you choose to provide access or not in such a situation, be sure to respond to oral requests in writing, describing what will be provided and when or stating that the request must be submitted in writing.  (We lawyers love documentation.) 
3.         Know your deadlines.  Many states have strict deadlines that require employers to respond to employee requests within a specific number of days.  Massachusetts requires employers to respond within five days after a written request.  Minnesota has deadline of seven working days.  Failure to respond in time may result in statutory penalties or a regulatory agency investigation.
4.         Be prepared for rebuttal.  Some state laws allow employees to rebut or otherwise respond to or comment on the information they find in their personnel records.  Delaware, Illinois and Minnesota statutes include such provisions.  Employers should accept the possibility that these statutory rights to respond may be exercised and be prepared to allow the response without reacting.  
5.         Don’t panic.  The fact that a current or former employee requests access to his or her personnel record does not mean that a lawsuit is imminent. The employee is gathering information and may have no legal agenda.  If the employee’s records do end up in the hands of an attorney, they may assist in convincing the attorney that the employer’s decision-making was sound and justified.  A complete and orderly personnel record that contains adequate documentation supporting personnel actions affecting the employee never hurts and often helps a great deal.  That’s why we go on and on about the importance of good documentation.
If employers know the requirements of their state’s laws, understand and comply with the requirements of federal law, and know how to find their information, they will be well-positioned to respond appropriately when employees request access.
Posted by Kate Bischoff