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Inspecting Personnel Files

While employers in some states have no legal obligation to provide inspection of personnel files or provide copies of reprimands, there are some good reasons for doing so anyway.

Monday, May 7, 2012
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Question: Are employers required to give employees copies of reprimands? We haven't been giving employees copies and have not been challenged on it until now, when one employee told us he wanted a copy. Do we have to give it to him? We are in New Jersey.

Answer: New Jersey law does not require employers to give employees copies of personnel files, and therefore, employers in New Jersey need not provide employees with copies of their reprimands. See 18 New Jersey Practice, Employment Law § 13.8, at 493 (Marvin M. Goldstein & Stanley L. Goodman) (rev. 2d ed. 2011).

That said, even if not required to do so, failing to provide employees with the opportunity to reasonably inspect their personnel records may lead to unwanted, unnecessary litigation from upset employees -- even if the employer ends up prevailing in the long run.

Unlike New Jersey, many states do require employers to permit employee inspection of personnel files. See, e.g., Conn. Gen. Stat. Ann. §§ 31-128a-128b (requiring employer to permit employee inspection of personnel files upon written request, and permitting employee to submit a written explanation to the extent they disagree with information contained therein); Del. Code Ann. tit. 19, §§ 730-734 (requiring employer to permit employee inspection of personnel files upon written request, and permitting employee to submit a written explanation to the extent they disagree with information contained therein, but the employer may limit the inspection to once per year absent reasonable cause); Minn. Stat. Ann. §§ 181.960-181.962 (requiring employer to permit employee inspection of personnel files upon written request, and permitting employees to submit a written explanation to the extent they disagree with information contained therein, but also precluding any defamation action by the employee unless the employer fails to comply with the rebuttal submission requirements); 43 Pa. Cons. Stat. Ann. §§ 1321-1322 (requiring employer to permit employee inspection of personnel files upon written request); R.I. Gen. Laws § 28-6.4-1 (requiring employer to permit employee inspection of personnel files upon written request, in the presence of the employer or his/her agent, and also permitting employer to disclose "fair and unbiased information about a current or former employee's job performance," to a prospective employer of the employee, and if disclosed, the employer is presumed to have acted in good faith unless the employee can show by a preponderance of the evidence that the information was "(1) [k]nowingly false; (2) [d]eliberately misleading; (3) [d]isclosed for a malicious purpose; or (4) [v]iolative of the current or former employee's civil rights under the employment discrimination laws in effect at the time of the disclosure").

While there is no such law in New Jersey, nor has any such law even been proposed, the increasing number of states with personnel-file-inspection laws already on the books certainly leaves open the possibility that New Jersey will one day pass such a law and, therefore, employers should be on alert for developments in this area.

Even if New Jersey employers are not required by law to permit employee inspection of reprimands, it still may make good legal and business sense to allow reasonable inquiries and inspections of employee records by employees.

First, New Jersey courts have made clear that employers could face liability for taking adverse employment action against an employee for requesting access to their personnel files. See Velantzas v. Colgate-Palmolive Co., Inc., 109 N.J. 189, 192-93 (1988).

Also, allowing reasonable employee inspection of reprimands and personnel files can prevent unnecessary litigation. An employee who has been denied access to his or her personnel file may come to the conclusion -- warranted or not -- that the denial is the result of potential unlawful activity and, in reaction, file a lawsuit against the employer.

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And once a lawsuit is filed, such information must invariably be disclosed during discovery. See, e.g., Ashwal v. Prestige Mgmt. Servs., Inc., L-3027-03, 2007 WL 2989718, at *19-20 (N.J. Super. Ct. App. Div. Oct. 16, 2007) (upholding trial court's grant of spoliation charge against employer for documents missing from employee's personnel files produced in discovery, implying, of course, that such information is appropriately discoverable).

Further, an employer's decision not to provide copies of reprimands to disciplined employees may lead the employee to conclude (whether correctly or not) that the employer has something to hide. By providing disciplined employees with copies of their reprimands, employers may be able to diffuse this belief and, instead, create an impression of transparency in the disciplinary process.

Thus, while New Jersey employers are well within their legal rights to refuse to provide employees with copies of their reprimands, the up side in refusing to provide copies may be overshadowed by the significant risks of litigation or employee distrust that may result from the refusal.

Accordingly, in some cases it may be better to provide copies of reprimands to employees who ask for them because in so doing, employers may be able to avoid the hassles associated with litigation, even if they are confident that they will prevail at litigation in the long run.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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