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Who Can See Personnel Files?

Originally published: 07.01.09 by Mike Coyne

Some U.S. government agencies can, but state guidelines vary.

The title of this article is really two questions — not one. The first question is: Who in your company do you permit to see personnel files? The second question is a legal one: Who is permitted to see personnel files as a matter of law? After considering the answers to both of these questions, you might decide to review your company’s practices regarding personnel records.

Let’s tackle the second question first. In the majority of states, employees have a legal right to examine their personnel files. Employee access is permitted in 35 states, but the nature of the employees’ rights varies from state to state.

In addition to employees, many government agencies have the right to review part or all of employee personnel files. For example, as part of retirement-plan audits, the Internal Revenue Service has the right to examine information concerning employees’ birth dates, hire dates, and dates of termination of employment. The Dept. of Homeland Security and certain other agencies have the right to review your personnel files for your I-9 forms (employment eligibility forms). Other agencies have access for the purpose of conducting unemployment compensation audits and workers compensation audits, and for investigating discrimination claims.

Finally, even in states that do not permit employees regular access to personnel files, an employee or his attorney may have access to personnel files in litigation, particularly where the litigation involves

alleged discrimination. For example, a court could require a personnel file to be turned over to the plaintiff in connection with an age-discrimination claim.

As you can see, certain outsiders have access to your personnel files, with or without your consent. Within your business, however, you have some control over who sees personnel files, and you should limit access.

Some states (fortunately, only a few) have allowed employees to bring defamation actions against employers when personnel information is shared among management employees. This risk is diminished if access to a file is limited to only those who need to have access, such as immediate supervisors and humanrelations managers.

Additionally, federal law requires employers to protect the confidentiality of an employee’s health information. To the extent any such information is in a personnel file, it must be protected. Compensation information should be protected in order to avoid political problems within your company.

Some employers find it useful to segregate personnel information into multiple files. For example, one file might include only the I-9 forms that are frequently requested by the government. A separate file might contain health-related information. A third file might contain the employment application and information from background checks performed in connection with the application. Another might include performance reviews and notes on performance. With separate files such as these, it is easier to disclose only the information that is required for review by a person or agency. T

he fact that outside agencies may have access to your personnel file should not discourage you from keeping good files. A well-maintained personnel file is an important business record and excellent defense against employee lawsuits.

Michael P. Coyne is a founding partner of the law firm, Waldheger Coyne, located in Cleveland, Ohio. For more information on the firm, visit: www.healthlaw.com or call 440-835-0600.

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