Sharing Files

The legal obligation of a company to allow an employee to view his or her personnel file varies by state, and most states do not have laws granting such a legal right after employment has been terminated.

By Tracey Levy

Personnel files are typically an amalgamation of records, some legally required (applications, I-9 forms*, tax records) and some maintained as a matter of prudent employment practice (performance evaluations, disciplinary notices, job history information). Their content can be highly relevant in employment litigation, and employees are often anxious to review them. 

In my experience, it is fairly common for employers to offer their employees an opportunity to review their personnel files periodically. But as discussed below, this employment practice does not necessarily correlate to legal obligations, and most states do not grant individuals a legal right to review their personnel files after their employment has terminated.

Question: I have a quick question regarding personnel files and what legal rights, if any, a former employee has with regard to viewing, copying, etc., the contents?

Answer: Employee access to personnel records is controlled by state law, and not surprisingly, states sometimes differ significantly with respect to the protections afforded to current employees and former employees. 

Some states provide access rights to both current and former employees, while others limit former employees' rights of access. Many states are completely silent on the issue (and thereby do not grant any specific rights of access).

Aside from distinctions between the access rights of current and former employees, there are numerous variations under state law with respect to employee access rights. For example, states may regulate an employee's right to copy the records, the employer's ability to recover copying costs, the frequency with which an employee may inspect his/her records, when and where such inspection may take place, whether the employer may limit an employee's right of access to certain documents (e.g. references), etc.

Connecticut law is rather typical for a state that mandates access to personnel records for both current and former employees. Employees must request such access in writing, and employers must comply within a reasonable period of time. Inspection must take place during regular business hours at or reasonably near the employer's place of business, and inspections are limited to twice per calendar year. Employees may obtain copies of their records, and employers may charge a reasonable fee for copying costs. Employers in Connecticut are required to keep personnel files for at least one year following termination of an employee. See Conn. Gen. Stat.  31-128a?31-128h.

Some states have special distinctions regarding the rights to access of former employees. For example, Delaware and Pennsylvania extend this right only to laid-off employees with reemployment rights. Del. Code. Ann. tit. 19,  731; 43 Pa. Stat.  1321. 

Minnesota limits former employees' right to access personnel records to one year post-termination (Minn. Stat. Ann.  181.960), while Nevada and Oregon have 60-day post-termination limits for former employees. Nev. Rev. Stat. Ann.  613.075; Or. Rev. Stat.  652.750. 

Illinois extends access rights to laid-off employees subject to recall, as well as to former employees terminated within the preceding year. 820 Ill. Comp. Stat. Ann. 40/1. Washington limits former employees' right to rebut or correct personnel files to within two years of termination. Wash. Rev. Code Ann.  49.12.250.

Some states, such as California and New Hampshire, provide access rights only to current employees. Many other states do not have statutes granting any employees access to their personnel records. These states include New York, Georgia and Ohio. Some minor exceptions may apply. 

Thus, as with so many other state-specific employment-law issues, it is best to check with local counsel if you have any question whether a current or former employee is entitled to review his/her personnel file.

To submit a question

* Editor's Note: The law requires that I-9 forms be maintained in a separate file than the rest of the personnel documents. The mention of I-9 forms in the column here is of an illustrative context, in which they are required personnel documents. It does not relate to how I-9 forms should be stored.

Jan 29, 2007
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