A payroll tip about personnel records and former employee access from HR Matters.
You may be willing to provide your current employees with access to their personnel files, but what about former employees? Find out why HR and legal experts do not recommend access for former employees unless required by law.
Personnel records are the property of the employer. Therefore, you generally have discretion over whether to give employees, or former employees, access to their personnel files unless a state law, court, or other government agency requires access. Federal law does not require you to give employees access.
However, many organizations such as yours, as a good will gesture, allow current employees to see and even copy their records. This openness usually reduces employee mistrust and concern about the information in their files. If your files contain only objective and job-related information, their contents should not surprise the employee or unnecessarily create the basis for a legal claim.
Approximately 20 states (including California, Illinois, and Michigan) require you to give employees, and sometimes former employees, access to their records. These state laws generally allow a limited number of inspections per year. Typically, some files, like records pertaining to future promotion, third-party references, criminal investigations, and other sensitive information, may be excluded from inspection. In addition, these laws usually allow you to require written requests for access to the files. Some states also give employees the right to copy their records.
In addition to allowing current employees access, a few states give former employees the right to inspect their files. For example, in Illinois, former employees can review and copy their file for up to a year after termination. Similarly, Michigan allows both current and former employees to review and copy their personnel files, upon written request, up to two times per year. Accordingly, you should check whether your state requires you to provide access to personnel records to former employees.
If your organization is not covered by a state law requiring access, you can be legitimately concerned that any personnel information may be used to support a legal claim against you. Therefore, you may prefer to deny access to former employees. Most HR and employment law experts, also concerned about the indiscriminate release of information, advise against giving former employees access unless required by law.
Remember, however, that employees or former employees who sue the employer can usually get their personnel records, and even other employees’ files, in the normal legal discovery process. For example, if a former employee files a discrimination claim in federal court, the court can order the employer to turn over all files related to the former employee and any similarly situated employees.
So, in establishing your records access policy, you need to address both your internal corporate operating philosophy and local legal requirements. But in doing so, remember that even if you limit access, you may still be compelled to disclose the information in a legal proceeding.
You can download a free Personnel Records model policy including HR best practices and legal background by clicking here, you will be required to complete a brief profile form.
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