Dana Dobbins
By Dana Dobbins
Question: What are the guidelines for when employees, current or former, request a copy of their personnel file, and what files are required to be provided upon request?
Answer: When it comes to an employee’s or former employee’s request for their own personnel files, employers must be cognizant of applicable state and local law when responding to such requests. Some states, including Idaho, Montana, New Mexico, Utah, and Wyoming do not have any state or regulatory provisions that apply to private-sector employment (though there may be specific regulations related to public-sector employers). Employers should be mindful of any company policies or procedures governing access to personnel files, which should comply with any applicable laws, and must apply those policies and procedures consistently.
Other states have specific rules governing current and former employee access to the employee’s personnel file. For example, under Colorado law, an employer must allow a current employee to inspect and obtain a copy of his or her personnel file at least annually, upon the employee’s request. However, the employer can require that the review occur at the employer’s office at a time that is convenient for both the current employee and the employer.
After the employment relationship terminates, a former employee may make only one inspection of his personnel file.
For both current and former employees, the employer can require that the employee or former employee access the personnel file only in the presence of certain employees designated by the employer. The employer can also require the employee or former employee to cover the reasonable cost of copying the personnel file.
Further, state law may define what is or is not included in personnel files. In Colorado, personnel files include documents that employers collect and use to determine an employee’s qualifications for employment, promotion, additional compensation, termination, or other disciplinary action. It does not include confidential reports from prior employers, active criminal or disciplinary investigations, or any document that identifies a person who has made a confidential accusation against the employee requesting the record.
Before denying an employee or former employee access to his or her own personnel file, employers should review local laws, company policies, and consult with a legal advisor to understand their obligations.
