You are hoping to get a promotion. Or maybe you were just passed up for one. You’re thinking about getting a new job, or maybe you don’t remember if you signed a non-compete agreement sometime during your employment. Maybe you are not sure what disciplinary records are contained in your file. Whatever your reason, you may want to access your personnel file. You have some idea of what’s inside – employment documents, payroll information, contact information, performance appraisals – but what else is in there and what haven’t you seen before? Do you have any rights to see it and/or make copies? As our Award Winning New York Employment Attorney has noted before it all depends on where you work and your workplace.
There are no federal laws mandating private sector employers give employees access to their own personnel files, although 17 states (Alaska, California, Connecticut, Delaware, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, Oregon, Pennsylvania, Rhode Island, Washington, and Wisconsin) grant varying levels of access. In the local Tri-State area, New York and New Jersey do not have any state laws but Connecticut does. A future blog post will discuss how to request your personnel file in Connecticut.
Even if you work in a state that doesn’t require employers to share their personnel files, however, you’re not necessarily dead in the water.
POINTS TO CONSIDER
• Check the policies and/or CBA: Some employers have written policies that allow employees access to their personnel files. Typically these employers are headquartered in states where access in permitted. If your company has such a policy, it may have a formal process in place as to exactly how you may access the file – filling out a form, giving a certain amount of notice to your HR department, etc. If you belong to a union, the collective bargaining agreement may have terms spelled out regarding access to the personnel files.
• Simply make a request: If your state doesn’t have any laws on releasing personnel files and your employer has no policy, you can still ask your employer for access. It is suggested, however, that you take certain steps when you do:
STEP ONE: Make a written request.
STEP TWO: Make your reasons clear, but keep the request simple. Too little or too much information, and your employer/HR rep may find a reason to not allow you access.
STEP THREE: Send your request by email. You may deliver a hard copy, as well, but by emailing the request, you are also creating a record and establishing proof that a request was made.
If your request is granted, inquire about your ability to make copies. Remember although the personnel file contains information about you, it is the Company’s property. Can you take notes? Can you take a picture of your file with your cell phone? Will they make copies of your file for you, or will you be permitted to make them yourself?
If your request is denied, however, request written assurances that everything in your HR file is accurate and that any inaccurate materials have been removed. As with before, it is suggested that you make this additional request electronically.
Bring a Lawsuit or Administrative Action: When all else fails, you may simply have to bring an action against your employer and seek your file in the discovery process. Obviously, any drastic course of action should be considered thoroughly, and, prior to taking any such action, you should discuss the merits of any claim with an experienced employment law attorney.
TWO FINAL POINTS WORTH NOTING
POINT ONE: If you find something that is inaccurate in your personnel file, you may want to ask your employer to correct it; and
POINT TWO: If you find any medical documents in your personnel file, that is not a proper practice and may be a violation of law. Your employer should keep your personal medical records in a separate file in a separate location. You should consult with an attorney if your records were not properly segregated.
Gaining access to one’s personnel file can be difficult. If your employer denies your request, you may want to start keeping your own journal of your work record. Keep in mind that public sector employees may have different rights and options. If you have any questions about your rights in the workplace, contact our offices today for a confidential consultation.
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Disclaimer: Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced attorney in your state or jurisdiction. From time to time, a blog post may discuss a legal case – please note that the post may not contain the most to update information on the case as developments may have occurred after it was created.