Hello again! The Employee’s Lawyer here, giving out all the secrets and truths about Employment Law and your legal rights.
As technology drastically advances, by what seems like the day, it is hard to imagine that anything is private anymore. However, there are some elements of your employment that even in this digital age may not be available to you. Here’s a section of my book “The Employee Rights Handbook” that deals with just that. Get informed and stay aware of your rights.
Access to Personnel Records
Each state has its own laws regarding an employee’s or ex-employee’s right to inspect his or her personnel file. In some states employees or their representatives have the right to review their personnel records pertaining to employment decisions. However, they generally cannot inspect confidential items such as letters of reference, information about other employees, records of investigation, or information about misconduct or crimes that have not been used adversely against them.
Some states have passed laws allowing employees access to their personnel records to correct incomplete or inaccurate information at a reasonable time and place. In such states you are usually not allowed to copy any of the documents in the file except for those you previously signed (such as an employment application or performance review). Such states usually allow you to make notes, however.
In other states you generally do not have the right to review your records, so check the law in your state. (The Federal Privacy Act deals mainly with access to employee records. This law forbids federal government employers from disclosing any information contained in employee files without the written consent of the employee in question. Discuss the ramifications of this federal law with your lawyer if applicable.)
Even in states where access to records is not permitted, employers are prohibited from distributing confidential information, such as medical records, to nonessential third parties and prospective employers, and you are generally permitted to inspect all your files containing confidential medical and credit information. Some union employees covered under collective bargaining agreements have the right to examine their own records and to be informed of what information is used in making decisions relevant to their employment. If you need legal help in your efforts to inspect the personnel file an employer (or past employer) has on you, and you don’t have a personal attorney upon whom you can call, your local or state bar association will most likely have a referral service. Ask for an attorney experienced in employment law. Statutes of this sort are constantly changing; only those who specialize in employment law in your state may be up to date on the finer points that may affect you.
STRATEGY: Since it is often difficult to review the contents of your personnel file, make and save copies of all documents the minute you receive them so you don’t have to retrieve them later. In some arbitrations and lawsuits, employers are prohibited from introducing “memos in the file” that were never read or signed by you. Advise your lawyer about this.
Some states grant workers the automatic right to include a rebuttal statement in their personnel file if incorrect information is discovered. Other states allow employees to do this when the employer will not debate such comments. A few states have laws that require employers to send copies of rebuttal statements to prospective employers or other parties when information pertaining to a worker or her employment history is conveyed. Since each state treats the subject differently, review your state’s law.
Some states require employers to seek workers’ approval before employee records can be collected, distributed, or destroyed, and it may be illegal to distribute personal information without your consent. Thus, the circulation of confidential memoranda within a company has given rise to lawsuits, particularly where the employer did not take adequate precautions to determine whether derogatory information was accurate. Some states prohibit employers from gathering and maintaining information regarding an employee’s off-premises political, religious, and other nonbusiness activities without the individual’s written consent. In these states employees and former employees can inspect their personnel file for the purpose of discovering if any such information exists. If their file contains such information, the employer may be liable for damages, court costs, attorney fees, and fines. With respect to medical records and investigations, the law generally recognizes that a duty of confidentiality can arise to protect this information and avoid dissemination to nonessential third parties.
Under emerging state laws and case decisions, employers who request medical information may be liable for the tort of intrusion and for the tort of public disclosure of private data. Several states have recognized a claim for negligent maintenance of personnel files when files containing inaccurate medical information are made available to third parties. For example, Connecticut enacted a statute requiring employers to maintain medical records separately from personnel files and permitting employees to review all medical and insurance information in their individual files.
STRATEGY. Always try to review the contents of your personnel file, especially when you believe that the employer is treating you unfairly (for example, denying you a promotion or raise). If damaging or false information is discovered, try to photocopy such information if possible. Don’t forget to inquire whether a rebuttal can be included in your file. Finally, if the employer refuses your request, investigate whether the law in your particular state permits you to review the contents of your file.
The topic of Employment law is a complex one and should be handled by an experienced professional. Should you have any questions on Employment law, contact The Employee’s Lawyer Steven Mitchell Sack.
