Former employees sometimes ask for copies of their personnel file, either during their exit interview or after they have left. At times, the “requests” come across more like “demands.” In some states, such as Michigan, employers have legal obligations to provide these employees with copies of their personnel file within certain time frames. If those time frames are not met, some states, such as California, impose hefty fines.
Other states, such as New York and New Jersey, have no law regarding employees or former employees accessing or receiving copies of their personnel files. It is therefore very important to know what law, if any, applies to your business. Just because an employee insists she has a right to her file does not mean that she does.
In states with no specific law, personnel files are usually seen as the property of the business, which the business can disseminate or retain as it sees fit. In those locations, employers would be within their rights, and the law, to deny employee requests seeking copies of their personnel file. However, if the business has a policy or practice of providing personnel file copies to departed employees, the business needs to apply that policy consistently.
Sometimes former employees are seeking their personnel file in advance of filing a lawsuit against their former employer. While a business would likely need to comply with a request for a former employee’s own personnel file during litigation discovery, in states with no requirements to relay it outside of litigation, providing former employees with “free discovery” in response to a request for a copy of their file might not be appropriate. Unless there is a clear law mandating that personnel files be provided to former employees, this request likely should be run by your employment lawyer to determine the appropriate course of action in each situation.
Even when there is such a law that your business must comply with, the law may define “personnel file contents” in such a way as to exclude documents the business happened to have put in the person’s file. Thus, even if the file needs to be turned over, it is generally prudent to consult with counsel regarding what should be provided.
Personnel files are important documents for employers that help track employee performance, qualifications, job training records, salary increases and manager concerns, among other issues. The documents included in personnel files should be accurate and truthful, without being disrespectful. There are times when managers do employee “write ups” that are not provided to the employee but only filed away. These sometimes paint the employee in an unflattering light, or use inappropriate language because, after all, the write-up was not going to the employee. There are many situations, however, where personnel files do need to be turned over to former employees, and/or to their lawyers. For this reason, accuracy, specificity, and civility should guide personnel document drafting.
Copies of these business documents should only be shared with former employees when required by law or when consultation with employment counsel familiar with the law of the place where your business is located determines it is the prudent course of action. Having your attorney review what is being turned over before that action is taken is also a good idea so as to be able to flag any potentially problematic documents in the given situation.
