Can Employees Get Their Personnel File?

The personnel file is one of the most critical parts of an employment case. When a current or former employee sues or is considering legal action, you’ll probably get a written request from the employee (or his attorney) for his personnel file. In some states, you must provide it even if your employee never files a lawsuit. In all states, you can expect that you’ll have to turn it over once a lawsuit begins. 

What the personnel file shows often determines if an attorney takes a case or how the case plays out. So even if the law does not require you to turn it over pre-lawsuit, you might want to. An early review of the personnel file can help a lawyer see if a potential case has flaws. But don’t try to game the personnel file or make it look more favorable to your side than it actually is. If you put things in the personnel file that should not be there or fabricate evidence after the fact to include in the personnel file, a computer forensic evaluation could eventually result in court sanctions. 

Attorneys representing employees usually only make money when the case is a winner. A personnel file showing a difficult legal battle and uncertain outcome is a powerful deterrent against legal action. But even if the personnel file has flaws, a cost-effective solution is often more likely if both sides get an early, pre-suit opportunity to review the personnel file. 

Personnel files should generally include I-9s, resumes, disciplinary records, performance improvement plans, pay records, and application materials. There can be severe consequences for excluding what should be included or including what should be excluded. 

For instance, failing to have resumes or application materials in the personnel file can support negligent hire claims. Including medical records in the personnel file, instead of keeping them in a separate, confidential file, can be a source of liability under the Americans with Disabilities Act or privacy laws. 

Here are three additional personnel file issues for employers with remote employees to consider.

State-Specific Retention Requirements  

With employees spread throughout the United States, you’ll probably need to lean towards holding onto personnel files longer than you would like. You don’t know where an employee might move. You also don’t know when a state law might change. If you’re extra cautious, you’ll want to keep records for at least seven years after termination. This may seem excessive. But it will cover you under the statute of limitations of almost all state-specific claims, though you should always check the laws in your employee’s jurisdiction.

State-Specific Definitions on “Personnel File” 

When you get a request for a personnel file, you must remember that states define “personnel file” differently. They also have different requirements on what should be excluded. You must pay attention to the state-specific definitions and exclusions. Why is this so important?

If an employee requests a copy of his personnel file under state law and eventually brings a claim, he could argue that you are not allowed to introduce evidence you failed to turn over that meets the state’s definition of personnel file material. Worse, he could argue that the sudden disclosure of a “new” document is proof of fabricated evidence. So don’t make assumptions about what should and shouldn’t be included in the personnel file. Take a state-by-state approach with an eye on federal law. If you’re in Michigan, the Bullard Plawecki Employee Right-To-Know Act specifically describes what should be included in the personnel file. 

Federal & State Privacy Protections 

When a remote employee requests a personnel file, you’ll want to carefully consider with your attorney what federal and state privacy protections come into play. You’ll likely be weighing both federal and state laws. Many employers unwittingly violate federal and state privacy laws when turning over a personnel file. For example, employers might fail to comply with medical privacy laws by failing to keep medical documentation separate and secure. Employers might also forget to do simple things like redact social security numbers or encrypt emails with sensitive information. This can get you in trouble with state or federal privacy laws like Michigan’s Social Security Number Privacy Act or the Gramm-Leach-Bliley Act. So be careful in turning over the personnel file. You don’t want to make a bad situation even worse. 

So when an employee requests his or her personnel file, especially in states like Michigan that have a requirement that you allow inspection or turn over the personnel file, make sure you follow the law. And if you are an employee who wants your personnel file, make sure you make a valid written request under your state’s law (if any). If your state does not have a law requiring production of the personnel file, you may be out of luck. But if you have already lost your job, ask for it anyways if you want it. Even if your former employer does not have to provide it, they may choose to do so anyways.